APPELLATE COURT OPINIONS

The defendant, Charlton Garner, was convicted by a Shelby County jury of second degree murder, a Class A felony; attempted second degree murder, a Class B felony; and reckless endangerment, a Class E felony. He was subsequently sentenced by the trial court to an effective sentence of twentyeight years in the Department of Correction. On appeal, he raises the single issue of sufficiency of the evidence with regard to each of the convictions. Specifically, he argues that the evidence presented at trial supports his theory of self-defense. Following review of the record, we affirm the judgments of conviction.

The Defendant, Gary V. Bullard, was charged with one count of aggravated assault and one count of attempted aggravated rape. Following a jury trial, he was found guilty of both counts. In this direct appeal, he argues that (1) the State presented evidence sufficient to convict him of simple assault, but not aggravated assault; and (2) the State presented evidence insufficient to convict him of attempted aggravated rape. After our review, we affirm the judgments of the trial court.

*NOTE: Opinion filed pursuant to 09-15-2009 Order granting rehear, wherein original opinion filed 08-05-2009 was withdrawn.

Plaintiff is subject to excise and franchise taxes in the State of Tennessee. For the five year period at issue the Commissioner issued a variance pursuant to the Uniform Division of Income for Tax Purposes Act which has been adopted by Tennessee. The variance enabled the Commissioner to alter the taxing formula and increase the amount of revenue assessed to plaintiff. Plaintiff filed this action in Chancery Court and the Chancellor voided the variance. On appeal, we hold that the Commissioner properly exercised her discretion in issuing the variance. We reverse the Chancellor and remand.

A Davidson County Criminal Court jury convicted the appellant, Jeremy Paul Duffer, of the following indicted offenses: Seven counts of rape of a child, four counts of aggravated sexual battery, two counts of especially aggravated sexual exploitation of a minor, and two counts of failure to appear. After a sentencing hearing, the appellant received an effective sentence of one hundred thirty-seven years in confinement. On appeal, the appellant contends that the evidence is insufficient to support the convictions and that his effective sentence is excessive. Upon review, we affirm the judgments of the trial court.

Following a jury trial, Defendant, Nicholas Fletcher was found guilty of first degree felony murder, attempted especially aggravated robbery, a Class B felony, and aggravated assault, a Class C felony. Defendant was sentenced as a Range I, standard offender, to life imprisonment with the possibility of parole for his felony murder conviction, eight years for his attempted especially aggravated robbery conviction, and three years for his aggravated assault conviction. The trial court ordered Defendant to serve his sentences concurrently for an effective sentence of life with the possibility of parole. On appeal, Defendant argues that (1) the trial court erred in denying his motion to suppress; (2) the prosecutor engaged in prosecutorial misconduct during the cross examination of Cordareyes Torry; and (3) the cumulative effect of these errors denied Defendant his constitutional right to a fair trial. After a thorough review, we affirm the judgments of the trial court.

The petitioner, Marcus Rogers, appeals from the post-conviction court’s denial of post-conviction relief as it relates to the petitioner’s convictions on one count of second degree murder and two counts of attempted second degree murder. On appeal, the petitioner argues that he received the ineffective assistance of counsel. Following our review of the record and the parties’ briefs, we affirm the judgment of the post-conviction court denying post-conviction relief.

The petitioner, Kenyale Pirtle (“Pirtle”), appeals the summary dismissal of his petition for writ of habeas corpus. In this appeal, Pirtle raises a single issue for our review. He argues that the trial court erred in granting the motion to dismiss because the Attorney General and Reporter, acting through one of his assistants, had no authority to file a motion to dismiss in the habeas court. We affirm the judgment of the trial court.

Petitioner seeking review of disciplinary action taken by warden of prison appeals the dismissal of his petition for writ of certiorari. Finding the trial court did not err, we affirm the dismissal of the petition.

Plaintiff, a patient care partner formerly employed by a hospital, brought suit against the hospital after her termination, alleging violations of the Tennessee Handicap Act, the Americans with Disabilities Act, the Tennessee Human Rights Act, the Family and Medical Leave Act and retaliatory discharge. The hospital filed a motion for summary judgment, which the trial court granted. Finding that the plaintiff did not create a genuine issue of material fact on essential elements of her claim of retaliatory discharge, we affirm the decision of the trial court.

The Defendant, Susan Gail Stephens, was charged with two counts of statutory rape and two counts of contributing to the delinquency of a minor. The State denied her application for pretrial diversion, and she petitioned for a writ of certiorari to review the State’s decision. The Circuit Court of Coffee County upheld the denial of pretrial diversion. The Defendant now appeals, arguing that the State, in its memorandum, considered irrelevant factors and failed to consider all relevant factors. After our review, we vacate the judgment of the trial court and direct that this case be remanded to the district attorney general for further consideration.

This is a negligence case. Appellant brought suit against Appellee alleging that Appellee negligently destroyed a piece of evidence. This evidence was relevant to a separate lawsuit involving Appellant. The trial court granted summary judgment in favor of Appellee finding that Appellee did not owe a duty of care to Appellant. Finding no error, we affirm.

The State of Tennessee ex rel. Mother filed a petition to modify the parties’ parenting plan. Finding the petition unfounded, the chancery court ordered Mother to pay Father’s attorney fees. However, upon learning that Mother could not be required to pay such fees, the chancery court assessed Father’s attorney fees against the State. We reverse.

This case arises out of a business agreement between the parties. Plaintiffs executed a note to purchase a company. The note contained a stock transfer restriction. Subsequently, Plaintiffs entered into a business agreement with Defendants. The subject of that agreement is disputed in this lawsuit, but Plaintiffs contend that Defendants purchased one-half of the company and executed an indemnity agreement to indemnify Plaintiffs for one-half of the note on the purchase of the company. After operating for nearly ten years, the company failed. At trial, Plaintiffs sought to enforce the indemnity agreement, and Defendants counterclaimed to recover $73,000.00 that they paid to Plaintiffs before they allegedly executed the contract. The trial court found in Plaintiffs’ favor. Defendants now appeal claiming that the trial court made several evidentiary errors, that the contract is unenforceable because it violated the statute of frauds, that parol evidence regarding the terms of the contract was inadmissible, and that the corporation cannot continue its existence and sell stock after dissolution. We reverse the trial court’s determination based on our finding that the contract is unenforceable as a matter of public policy.

The petitioner, Ricky Lee Nelson, appeals the criminal court’s dismissal of his petition for postconviction relief. The state has filed a motion requesting that this court affirm the court’s judgment pursuant to Rule 20 of the Tennessee Court of Criminal Appeals. We conclude that the state’s motion is meritorious. Accordingly, we grant the state’s motion and affirm the judgment.

The petitioner, Charles Green, appeals the judgment of the Gibson County Circuit Court denying post-conviction relief. On appeal, the petitioner argues that he received the ineffective assistance of counsel which caused him to enter an unknowing and involuntary guilty plea. Following our review of the record and the parties’ briefs, we affirm the judgment of the court denying post-conviction relief.

The defendant, Lorne James Clabough, was convicted of especially aggravated kidnapping (Class A felony), aggravated assault (Class C felony), two counts of aggravated assault by recklessness (Class D felony), and evading arrest (Class E felony). The trial court imposed an effective sentence of twenty years. In our initial review, the convictions and sentences were affirmed. See State v. Lorne James Clabough, No. E2005-02133-CCA-R3-CD, 2007 Tenn. Crim. App. LEXIS 14 (Tenn. Crim. App. Jan. 8, 2007, at Knoxville), perm. to appeal granted, case remanded (Tenn. Oct. 15, 2007). Our supreme court remanded to this court for reconsideration in light of State v. Gomez II, 239 S.W.3d 733 (Tenn. 2007). Upon review, we remand to the trial court for resentencing of the defendant for his Class A felony and both Class D felony convictions, and we affirm the remainder of the sentence.

This workers’ compensation appeal has been referred to the Special Workers’ Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated section 50-6-225(e)(3) for a hearing and a report of findings of fact and conclusions of law. Employee suffered a significant work-related injury to his left shoulder. An attempt to repair the injury by surgery failed. Employee had sustained a previous injury to his right shoulder. After the left shoulder injury occurred, he reported symptoms of bilateral carpal tunnel syndrome. The trial court found him to be permanently and totally disabled. It determined that his earlier injury had caused a disability of 15% to the body as a whole. On that basis, it assigned 85% of the liability for the present injury to Employer and 15% to the Second Injury Fund. Employer has appealed, arguing that the trial court erred by finding that Employee was permanently and totally disabled. Employer and the Second Injury Fund also contend that the trial court erred in its method of apportioning the
award. We affirm the finding of permanent and total disability. We agree that the method  used to apportion the award was incorrect and remand the case for additional proceedings on that issue.

This is a breach of contract case. Purchaser/Appellant appeals the trial court’s finding that Purchaser/Appellant is in breach of the contract for sale of real property, and entry of judgment in favor of Seller/Appellee pursuant to the default provisions of the contract. Specifically, the trial court found Purchaser/Appellant in breach on grounds of late payments, failure to list Seller/Appellee as additional insured, and failure to provide proof of termite treatment. We modify and affirm on the grounds of failure to list Seller/Appellee as an additional insured and on failure to provide termite protection contract.

The Petitioner, Giovanna A. Sturgill, appeals from the order of the trial court dismissing her petition for post-conviction relief as time-barred. The State has filed a motion requesting that this Court affirm the judgment of the trial court pursuant to Rule 20 of the Rules of the Court of Criminal appeals. We grant the State’s motion and affirm the judgment of the trial court.

A McNairy County jury convicted the Defendant-Appellant, Joseph Ray Pinson (“Pinson”), of rape of a child. The trial court sentenced Pinson to twenty years in confinement to be served at 100%. The sole issue for our review is whether the evidence is sufficient to support the conviction. However, we lack jurisdiction to review this matter because there is no order reflecting the trial court’s ruling on Pinson’s motion for new trial. Because the record clearly shows the trial court denied Pinson relief, we remand this case for supplementation of the record with an order denying Pinson’s motion for new trial.

The defendant, Andre Perkins, was convicted by a Shelby County jury of one count of voluntary manslaughter, a Class C felony, and one count of theft of property over $1000, a Class D felony. The trial court subsequently sentenced the defendant as a Range I, standard offender to consecutive sentences of six years and four years for the respective convictions. On appeal, the defendant asserts that: (1) the evidence is insufficient to support the convictions; and (2) the sentences imposed are excessive based upon the erroneous application of enhancement factors, the failure to apply mitigating factors, and the imposition of consecutive sentencing. Following review of the record, we conclude that the evidence is sufficient to support the conviction for voluntary manslaughter, and we affirm that conviction. However, review of the record reveals that the State failed to establish the element of value with regard to the theft conviction. As such, we modify the conviction to one for theft of property less than $500, a Class A misdemeanor, and remand to the trial court for re-sentencing. With regard to the sentence for voluntary manslaughter, we conclude that the trial court erred in its application of two enhancement factors. The record does support the trial court’s refusal to apply mitigating factors and its imposition of consecutive sentencing. Nonetheless, because of the errors which occurred in sentencing, we remand the case for re-sentencing in accordance with the principles set forth in this opinion.

The petitioner, Adam Betts, appeals the Shelby County Criminal Court’s denial of his petition for post-conviction relief. The petitioner was convicted of first degree murder and is currently serving a sentence of life imprisonment with the possibility of parole. On appeal, he argues that he was denied his Sixth Amendment right to the effective assistance of counsel, specifically arguing that trial counsel was ineffective in: (1) failing to investigate the case or hire an investigator, to file certain pretrial motions, and to interview witnesses prior to trial; and (2) failing to litigate the motion to suppress the petitioner’s statement. After review, the judgment of the post-conviction court is affirmed.

The Appellant appeals the trial court's dismissal of his petition for post conviction relief. The Appellant filed his petition outside the statute of limitations. Accordingly, the judgment of the trial court is affirmed.

This case involves an arbitration agreement executed when a resident entered a nursing home. The resident’s daughter signed the arbitration agreement after telling nursing home employees that she had power of attorney. The daughter later sued the nursing home on behalf of her mother, and the nursing home sought to enforce the arbitration agreement. The daughter then claimed that she was not actually authorized to act as her mother’s attorney-in-fact. The trial court agreed and refused to enforce the arbitration agreement. On appeal, the nursing home contends that the daughter was authorized to sign the arbitration agreement on behalf of her mother due to a document which, according to the nursing home, effectively granted the daughter power of attorney. We affirm the trial court’s finding that the daughter lacked authority to execute the arbitration agreement on behalf of her mother.