APPELLATE COURT OPINIONS

The defendant, Katie Ann Walsh, pled guilty in the Sullivan County Criminal Court to violation of a habitual traffic offender order, reckless endangerment, and felony failure to appear, all Class E felonies. The Sullivan County Criminal Court sentenced her to concurrent one-year sentences as a Range I offender for the habitual traffic offender violation and reckless endangerment and fined her $250.00 on each offense. The court sentenced her to one year as a Range I offender for the failure to appear, with a $250.00 fine, to be served consecutively to the other sentences. The defendant appeals, contending that the trial court erred in interpreting and applying applicable law in denying her any form of alternative sentencing. We affirm the judgments of the trial court.

The defendant, George Garner, Jr., appeals his Rutherford County Criminal Court conviction of one count of attempted second degree murder. In this appeal, he contends that the evidence was insufficient and that his sentence is excessive. We affirm the judgment of the trial court.

Stephen E. DePasquale, M.D. (“Plaintiff”) was employed by Chattanooga Gyn-Oncology, LLC. Plaintiff’s employment was terminated in August 2006. The parties entered into a negotiated settlement agreement (the “Agreement”), whereby Plaintiff was to receive $49,500 in severance pay, conditioned upon his abiding by the terms of the Agreement. The Agreement also provided that if either party defaulted, the non-defaulting party was entitled to attorney fees if suit was filed to enforce the terms of the Agreement. When Plaintiff did not receive payment, he filed this suit to enforce the terms of the Agreement and sought damages in the amount of $49,500, plus interest and attorney fees. Donald H. Chamberlain, M.D. and Chattanooga Gyn-Oncology, LLC (“Defendants”) claimed Plaintiff had breached the terms of the Agreement and was not entitled to any severance pay. Defendants also sought an award of attorney fees. Following a trial, the Trial Court determined that Plaintiff had breached the Agreement and was not entitled to any severance pay. The Trial Court further determined that Defendants were not entitled to an award of attorney fees. Defendants appeal claiming the Trial Court erred when it refused to award them attorney fees. Plaintiff raises a separate issue, claiming that the Trial Court erred when it determined that he had breached the Agreement. We reverse the Trial Court’s judgment against Plaintiff, and remand for the entry of judgment in favor of Plaintiff for $49,500, plus attorney fees to be determined by the Trial Court.

I concur in the results reached and most of the reasoning used in the majority opinion. I write separately to stress the importance of complying with Tennessee Code Annotated section 40-13-202, which requires that the “indictment must state the facts constituting the offense in ordinary and
concise language . . . in a manner so as to enable a person of common understanding to know what is intended and with the degree of certainty which will enable the court, on conviction, to pronounce the proper judgment.” To me, alleging the particular property stolen is not surplusage; it is required.  With the indictment alleging the theft of U.S. Currency, proving the theft of other property would constitute a variance.

The defendant, Perry A. March, appeals his jury-imposed, Davidson County Criminal Court theft conviction and his five-year sentence. In his appeal, the defendant claims that the convicting evidence was insufficient because of a variance between the indictment and the proof, that the trial court erred in denying his objection to the use of pattern jury instructions for theft, and that the court erred in enhancing his sentence. Claiming that the trial court did not enter an order to address the defendant’s timely motion for new trial, the State seeks dismissal of the appeal. We reject the State’s claim for dismissal, and because the proof supported the claim of theft, we affirm the conviction; however, we modify the sentence to three years.

The defendant, Hosie Perry, Jr. was convicted by jury of two counts of first degree premeditated murder for which he received consecutive sentences of life imprisonment. On appeal, he contends that: (1) the evidence was insufficient to sustain his convictions because there was no proof connecting him to the crimes other than uncorroborated accomplice testimony; (2) the trial court erred in admitting autopsy photographs of the victims; and (3) the trial court erred in sentencing him to two consecutive life sentences. Upon review of the record and the parties’ briefs, we affirm the judgments of the trial court.

The defendant, Jeffery E. Long, was convicted of aggravated robbery and sentenced to thirteen years as a Range II, multiple offender. On appeal, he argues that the evidence was insufficient to support the verdict and that the trial court erred in three areas: admission of a photographic lineup, failure to grant a mistrial, and failure to require a different jury panel when it was possible some members saw the defendant led into a holding cell in the courthouse prior to trial. After careful review, we conclude that no reversible error exists and affirm the judgment from the trial court.

The appellant, Joseph Bloodgood, pled guilty to facilitation of aggravated burglary and received a sentence of two years. The trial court denied the appellant alternative sentencing, and the appellant now appeals. Upon our review of the record and the parties’ briefs, we affirm the judgment of the trial court.

The last court to consider the petitioner’s mental fitness was the trial court that dismissed his post-conviction case without prejudice in 1988 because the petitioner was mentally incompetent to proceed. We are presently faced with a Motion to Reopen form that is quite limited when compared to the form for a petition for post-conviction relief. It does assert, however, that the petitioner was found incompetent and that he did not seek an appeal because he was unaware of the process due to his incompetence.

In 1982 the petitioner, Lebron Moore, was convicted of aggravated rape and second degree burglary and sentenced to forty years in the Department of Correction. Following an unsuccessful direct appeal, he filed a petition for post-conviction relief, which was dismissed in 1988 on the ground that he was mentally incompetent to proceed. In 2005, the petitioner filed a pleading styled “Motion to Reopen Post-Conviction Petition,” which the post-conviction court treated as a new petition for post-conviction relief and dismissed as untimely. The petitioner argues on appeal that the post-conviction court erred in finding the petition untimely. Following our review, we affirm the judgment of the post-conviction court.

Although I concur in much of the majority opinion, I write separately to express my disagreement with the majority’s expansion of the scope of our standard of review in Board of Professional Responsibility (“BPR”) cases. Under its revised standard, the majority fails to give proper deference to the panel’s conclusion that Mr. Hughes clearly and convincingly demonstrated that his reinstatement would not be detrimental to the integrity of the bar, the administration of justice, or the public interest. Because the outcome of this case turns upon the proper application of our standard of review, I will explain my views on that standard in some detail.

This is a direct appeal from a judgment of the trial court, which set aside a decision by a hearing panel designated by the Board of Professional Responsibility granting a disbarred attorney’s petition for reinstatement of his law license. The issue presented is whether the attorney, who was convicted of bribing a witness and conspiracy to bribe a witness in a criminal trial, has met  the criteria for immediate reinstatement to the practice of law. Although the panel properly determined that the evidence clearly and convincingly proved the moral qualifications of the attorney and his knowledge of state law, we hold that the evidence failed to so meet the threshold as to the third requirement–that reinstatement would not be detrimental to the standing of the bar, the administration of justice, and the interest of the public. The judgment of the trial court is, therefore, affirmed.

The defendant, Johnny B. Cox, was convicted by a Madison County Circuit Court jury of two counts of assault, a Class A misdemeanor. He was sentenced to the maximum sentence of eleven months and twenty-nine days for each count, to be served consecutively, with his release eligibility set at seventy-five percent. The defendant was ordered to pay a fine of $2500 for the first count and a fine of $500 for the second count. In this appeal, the defendant raises the issue of whether the evidence was sufficient to support his convictions. We affirm the judgments of the trial court.

The appellant pled guilty in the Madison County Circuit Court to theft of property valued between $1,000 and $10,000. The trial court sentenced her as a Range I, standard offender to two years to be served on probation supervised by Community Corrections. On appeal, the appellant  ontends that the trial court erroneously denied her request for judicial diversion. Upon review of the record and the parties’ briefs, we affirm the judgment of the trial court.

The defendant pled guilty to one count of attempt to obtain a controlled substance by fraud in case number S50,151 in exchange for an eight year sentence to be served on probation. He also pled guilty to one count of attempt to obtain a controlled substance by fraud and one count of fraudulently obtaining benefits for medical assistance in case number S50,727. For the controlled substance conviction, he received an eight year sentence to be served on probation concurrently with the sentence in case number S50,151. For the medical assistance conviction, the agreed sentence was six years, run consecutively to the other two sentences, with the manner of service to be determined by the trial court. After a sentencing hearing, the trial court ordered the defendant to serve his six year sentence in the Department of Correction. On appeal, the defendant argues the trial court failed to make his pre-sentence report available and erred in sentencing him as a Range III offender. After a thorough review of the record and applicable law, we affirm the judgment of the trial court.

Defendant Homebuilder left plaintiff Homeowners’ job site before completing construction of their residence. Homebuilder appeals the chancery court’s confirmation of an adverse arbitration award, arguing that the arbitrator exceeded his authority by refusing to enforce a provision of the contract that would have rendered the plaintiff Homeowners’ suit time barred. The limitation provision applied to suits for defective improvements to real estate. The gravamen of this breach of contract action was partial performance, not defective performance. Further, the arbitrator awarded to Homeowners the cost to complete the construction plus interest, attorney’s fees, and arbitration costs. Finding that the limitation period does not apply to this action, we affirm.

The defendant, Richard Burton, was convicted of one count of introducing contraband into a penal institution. On appeal, he argues that he was erroneously convicted of an offense for which he was not indicted. In addition, the defendant argues that the trial court’s interpretation of the statute resulted in a duplicitous indictment and the trial court’s jury charge prevented a unanimous jury verdict. Following our review of the parties’ briefs, the record, and the applicable law, we reverse the judgment of the trial court, vacate the conviction and dismiss the charges against the defendant.

The plaintiff wife filed a Complaint for Divorce. The parties entered into a mediation which resulted in all issues being resolved in a mediated settlement, and the Final Report of the mediator was filed in Court. The plaintiff then voluntarily nonsuited her action for divorce, and refiled on the same date in Circuit Court. The Trial Court ultimately set aside the nonsuit, tried the issues raised, approved the mediated settlement and granted the parties a divorce. On appeal, we affirm.

The petitioner, Anthony T. Robertson, filed a petition for a writ of habeas corpus challenging his conviction for sexual battery. The trial court issued a written order dismissing the petition and denying habeas corpus relief for failure to state a cognizable claim. The petitioner filed an untimely appeal of the written order denying his petition. Following our review of the parties’ briefs, the record, and the applicable law, we conclude that the petitioner failed to timely file his notice of appeal and therefore his appeal is dismissed.

The defendant, Robert Rubin, was convicted by a Shelby County Criminal Court jury of the first degree murder of Michael Gross. He was also convicted of the attempted first degree murder of Charles Gross, a Class A felony. The defendant is serving consecutive sentences of life for the first degree murder conviction and thirty-five years for the attempted first degree murder conviction. In this direct appeal, the defendant contends (1) that the evidence is insufficient to convict him of first degree murder, and (2) that the trial court erred in sentencing him to a thirty-five year term for attempted first degree murder and in imposing the sentences consecutively. We hold that no error has been shown, and we affirm the trial court’s judgments.

The Petitioner, Matthew Dixon, appeals from the post-conviction court’s order denying his petition for post-conviction relief. On appeal, he argues that the denial of relief was error because he did not receive the effective assistance of counsel at trial. Following our review, we conclude that the Petitioner has not shown that trial counsel was ineffective. Consequently, we affirm the post-conviction court’s order denying post-conviction relief.

The Petitioner was convicted of possession of contraband in a penal institution, a Class C felony, and was sentenced to ten years as a Range III offender. He filed a petition for habeas corpus relief claiming that he did not knowingly and intelligently waive his right to counsel when he represented himself at trial and that the indictment was defective. The habeas corpus court dismissed the petition without a hearing. After a thorough review of the record and applicable law, we affirm the judgment of the habeas court.

This appeal concerns the scope of an employer’s liability for its employee’s allegedly negligent operation of a motor vehicle owned by the employer. In this case both the employer and the employee were sued after the employee became involved in an automobile accident with another motorist. Arguing that there was no basis for holding it vicariously liable for any negligence on the part of its employee, the employer moved the trial court for summary judgment. The employer’s motion was granted. We affirm and remand for further proceedings.

The appellants, Derrick Quintero and William Eugene Hall, Jr., were each convicted on two counts of murder during the perpetration of first degree burglary, three counts of grand larceny, one count of petit larceny and three counts of first degree burglary. They both received the death penalty for the murder of one of the victims, a life sentence for the other murder conviction, and an effective eighty year sentence for the remaining convictions. The appellants were unsuccessful in their direct appeals. See State v. Hall and Quintero, 976 S.W. 2d 121 (Tenn. 1998). Appellants filed individual pro se post-conviction petitions and simultaneously joint petitions for writ of error coram nobis. Appellants alleged various constitutional violations, including the ineffective assistance of counsel and the existence of newly discovered evidence. Following a joint hearing on the petitions the trial court denied relief. We affirm the judgments.

The defendant, George Lucas Jernigan, pleaded guilty to one count of aggravated sexual assault, one count of driving on a suspended license, and one count of reckless driving. The Bedford County Circuit Court imposed an effective six-year term to be served in the Department of Correction. The defendant now appeals, alleging that community corrections placement was a more appropriate sentence and that the trial court erroneously applied statutory enhancement factors to increase the sentence that were not found by a jury. Upon review, we affirm the judgments below.