APPELLATE COURT OPINIONS

This is a health care liability case. The trial court granted Appellee’s motion for summary judgment because, inter alia, Appellant failed to provide Appellee with the proper pre-suit notice under Tennessee Code Annotated section 29-26-121(a)(1). Finding no error, we affirm.

The pro se Defendant, Tonica Alvarado aka Tonica Beckham, appeals the trial court’s denial of her motion to correct a clerical error on her probation revocation order pursuant to Tennessee Rule of Criminal Procedure 36.1. After review, we remand the case for further findings.

Foster parents brought a petition to terminate the parental rights of a biological mother on three grounds, and the trial court granted the petition on all three grounds. Because the foster parents failed to prove any of the grounds by clear and convincing evidence, we reverse the decision of the trial court.

This is an appeal from an order of partial summary judgment. Although the trial court attempted to certify its order as final pursuant to Rule 54.02 of the Tennessee Rules of Civil Procedure, we hold that such certification was improvident. There being no final judgment before us, we are compelled to dismiss this appeal for lack of subject matter jurisdiction.

Wife appeals the trial court’s judgment, arguing that the trial court erred in treating an obligation contained in the parties’ marital dissolution agreement as an alimony obligation rather than a division of marital debt that was extinguished upon the foreclosure of the subject property. In the alternative, Wife contends that the trial court erred in not further reducing or eliminating her alimony obligation. We conclude that Wife waived her arguments concerning the proper classification of this obligation as a marital debt by not raising this argument in the trial court. As to the trial court’s decision regarding modification of Wife’s alimony, we vacate the trial court’s ruling and remand for an order fully compliant with Rule 52.01 of the Tennessee Rules of Civil Procedure.

The petitioner, James Burgess, appeals the Bledsoe County Circuit Court’s summary dismissal of his petition for habeas corpus relief, which petition alleged that his judgments for first degree felony murder are illegal. Discerning no error, we affirm.

This appeal involves a marriage of short duration. Following a bench trial, the court granted the wife a divorce and classified and divided the parties’ marital estate. The husband takes issue with the trial court’s classification and division of the marital property, as well as the award of alimony to the wife. The wife seeks attorney fees and costs. We affirm in part as modified and reverse in part.

A Bedford County jury convicted the defendant, David Darrell Fletcher, of aggravated burglary (count 1), first degree premeditated murder (count 2), and first degree felony murder (count 3), and the trial court imposed an effective sentence of life plus 10 years. On appeal, the defendant challenges the sufficiency of the evidence supporting his first degree murder conviction and several of the trial court’s rulings. The defendant argues the trial court erred in admitting testimony regarding a statement he made to Amber Fletcher during a recorded phone call, in failing to designate three witnesses as accomplices as a matter of law and in failing to charge the jury accordingly, and in denying the defendant’s motions for a change of venue and for a mistrial. After reviewing the record and considering the applicable law, we affirm the judgments of the trial court. However, we note, in merging the defendant’s convictions in counts 2 and 3, the trial court failed to impose a sentence for the merged conviction of count 3. Because the conviction of count 3 carries a mandatory life sentence, a new sentencing hearing is not required, but we remand the case to the trial court for the entry of a completed judgment form as to count 3.

The pro se Petitioner, William Antwain Burns, appeals the summary dismissal of his petition for post-conviction DNA analysis. Following our review, we affirm the judgment of the post-conviction court summarily dismissing the petition.

The petitioner, Sedrick D. Williams, appeals the Knox County Criminal Court’s summary dismissal of his motion to correct what he believes to be an illegal sentence, filed pursuant to Tennessee Rule of Criminal Procedure 36.1. Discerning no error, we affirm.

This action involves the termination of a father’s parental rights to his minor child. Following a bench trial, the trial court found that clear and convincing evidence existed to establish the statutory ground of abandonment for failure to manifest an ability and willingness to personally assume responsibility of the child. The court also found that termination was in the best interest of the child. We affirm the trial court.

I concur in much of the majority’s excellent analysis, in its framing of the issues, and in its stated decision to adopt a substantive-versus-procedural test for whether a statute violates the separation of powers clause. I write separately because I must dissent from the majority’s holding that Tennessee Code Annotated section 29-26-121(f) is unconstitutional only to the limited extent that it makes ex parte interviews mandatory instead of permissive. I see no way to avoid holding that the statute is unconstitutional in its entirety.

We granted review in this case to determine whether Tennessee Code Annotated section 29-26-121(f) violates the separation of powers clause in the Tennessee Constitution. The statutory provision allows defense counsel to conduct ex parte interviews with patients’ non-party treating healthcare providers in the course of discovery in a healthcare liability lawsuit. We hold that section 29-26-121(f) is unconstitutional as enacted, to the limited extent that it divests trial courts of their inherent discretion over discovery. We also conclude that the statute can be elided to make it permissive and not mandatory upon trial courts. As such, we hold that the elided statute is constitutional. We vacate the trial court’s qualified protective order entered in this case and remand the case to the trial court for reconsideration based on the guidance set forth in this opinion. 

Alfred R. Mason, Defendant, pled guilty to various drug offenses and received a sentence to be served on community corrections. After a violation warrant was filed and Defendant admitted to the violation, the trial court revoked community corrections and ordered Defendant to serve his sentence. Defendant appeals from the revocation of his community corrections sentence arguing that the trial court abused its discretion by (1) ordering Defendant to serve the balance of his sentence instead of resentencing him and (2) failing to award Defendant credit for time served on community corrections. After our review, we affirm the revocation of Defendant’s community corrections sentence and remand to the trial court. On remand, the trial court should enter amended judgment forms to reflect credit for time successfully served on community corrections prior to the issuance of revocation warrants.

The Defendant, Edward Jerome Harbison, appeals from the Hamilton County Criminal Court’s denial of his “Motion for Second Chance,” which the trial court considered as a Tennessee Rule of Criminal Procedure 35 motion. On appeal, the Defendant contends that the court erred in denying relief. We affirm the judgment of the trial court.

The Defendant, Joshua Fisher, appeals his conviction for first degree premeditated murder for which he received a sentence of life imprisonment. On appeal, the Defendant contends that the trial court erred in admitting evidence of the Defendant’s prior threats and acts of violence against the victim pursuant to Rule 404(b) of the Tennessee Rules of Evidence. Upon reviewing the record and the applicable law, we affirm the trial court’s judgment.

The Defendant, LaCurtis Odom, was indicted on one count of premeditated first degree murder, a Class A felony; one count of first degree felony murder, a Class A felony; one count of theft of property valued at more than $1,000, a Class D felony; one count of criminal attempt to commit especially aggravated robbery, a Class B felony; and one count of unlawful possession of a handgun by a convicted felon, a Class E felony. See Tenn. Code Ann. §§ 39-12-101, -13-202, -14-103, -17-1307. Following a jury trial, the Defendant was convicted as charged. The trial court imposed a total effective sentence of life plus eighteen years, twelve years of which were to run consecutively to the Defendant’s sentence in a previous case. In this appeal as of right, the Defendant contends (1) that the evidence was insufficient to sustain his convictions for premeditated first degree murder, felony murder, and attempted especially aggravated robbery; (2) that relative to the murder charges, the trial court failed to instruct the jury on the lesserincluded offense of reckless homicide; and (3) that the trial court erred by imposing consecutive sentencing. Following our review, we affirm the judgments of the trial court.

Defendant, Jeannette Jives-Nealy, was convicted by a jury of theft over $60,000 and money laundering. The trial court sentenced Defendant to a total effective sentence of twenty-four years’ incarceration. On appeal, Defendant asserts that: (1) the evidence was insufficient to support her convictions; (2) the trial court erred when it failed to sever the two counts of the indictment; (3) the trial court erred in allowing the jury to hear evidence of prior bad acts under Tennessee Rule of Evidence 404(b); (4) the trial court imposed an excessive sentence; and (5) the trial court erred by ordering Defendant to pay restitution to a victim, who had been paid in a previous civil court settlement. Following a thorough review of the record and applicable case law, we affirm the judgments of the trial court and remand for entry of an amended judgment for money laundering.

A Shelby County Criminal Court Jury convicted the Appellant of possession of heroin with intent to sell, a Class B felony; possession of heroin with intent to deliver, a Class B felony; two counts of possession of a firearm with the intent to go armed during the commission of or attempt to commit a dangerous felony, Class D felonies; and two counts of simple possession of Alprazolam, Class A misdemeanors. After a sentencing hearing, the trial court merged the possession of heroin convictions, merged the possession of a firearm convictions, and merged the simple possession convictions and sentenced the Appellant to an effective sentence of nineteen years in confinement. On appeal, the Appellant contends that the trial court erred by denying his motion to suppress evidence and that the evidence is insufficient to support the convictions. Based upon the oral arguments, the record, and the parties’ briefs, we conclude that the evidence is insufficient to show that the Appellant actually or constructively possessed the drugs or gun. Accordingly, the Appellant’s convictions are reversed, and the charges against him are dismissed.

This is the third occasion Petitioner, Matthew B. Foley, appeals from a denial of his petition for post-conviction relief raising the same primary lament – he does not belong on the Tennessee Sexual Offender Registry. He is seeking relief from his 2002 guilty-pleaded conviction for facilitation of especially aggravated kidnapping, an offense which, at the time of his plea agreement, was not listed as an offense requiring sexual offender registration. Petitioner, who was a sixteen year-old minor at the time of his guilty plea, continues to allege that the statute of limitations for post-conviction relief should be tolled on due process grounds and that the State breached a material element of his plea agreement by requiring him to register as a sex offender. The post-conviction court summarily denied relief based on the expiration of the statute of limitations. In the first appeal, this Court concluded that the statute of limitations should be tolled based on due process grounds, and we remanded the case for an evidentiary hearing. Matthew B. Foley v. State, No. M2015-00311-CCA-R3-PC, 2016 WL 245857, at *8 (Tenn. Crim. App. Jan. 20, 2016), no perm. app. filed (“Foley I”). On remand, the post-conviction court held a hearing and found the statute of limitations should not be tolled. In the second appeal, this Court found that the statute of limitations issue had been conclusively decided in Foley I and remanded the case to the post-conviction court for an evidentiary hearing on the merits. Matthew B. Foley v. State, No. M2016-02456-CCA-R3-PC, 2017 WL 5054571, at *3 (Tenn. Crim. App. Nov. 1, 2017) no perm. app. filed (“Foley II”). On remand for the second time, the post-conviction court denied the petition, finding that Petitioner failed to diligently pursue his rights and, therefore, that the statute of limitations should not be tolled. The post-conviction court also found that Petitioner failed to show the State violated a material element of his plea agreement and failed to show the State violated his due process rights. For the following reasons, we reverse the judgment of the post-conviction court, grant post-conviction relief and remand the case for further proceedings consistent with this opinion.

I concur fully with the majority opinion. Although I realize that the issue in this appeal concerns the denial of post-conviction relief, I write separately to express my opinion that, in light of the numerous amendments to the Tennessee Sexual Offender and Violent Sexual Offender Registration, Verification and Tracking Act of 2004 (the TSORA) and specifically the numerous amendments to the residential and work restrictions in Tennessee Code Annotated section 40-39-211, it is an appropriate time for the supreme court to revisit its holding in Ward “that the registration requirements imposed [by the TSORA] are nonpunitive and that they are therefore a collateral consequence of a guilty plea[.]” Ward v. State, 315 S.W.3d 461, 469 (Tenn. 2010). As the Ward court stated, “Obviously, nothing in this opinion precludes the possibility that an amendment to the registration act imposing further restrictions may be subject to review on the grounds that the additional requirements render the effect of the act punitive.” Id. at 472.

The pro se Petitioner, Tamir Clark, appeals the circuit court’s dismissal of his motion to withdraw his 2012 guilty pleas. Following our review, we affirm the judgment of the trial court summarily dismissing the motion.

This case involves an appeal to the Bradley County Chancery Court (“trial court”) of an administrative decision by the Building Board of Adjustment and Appeals for the City of Cleveland (“the Board”) to uphold the City of Cleveland’s chief building official’s decision to condemn and order the demolition of a commercial building. Upon a notice of condemnation issued by the chief building official based on the allegedly dilapidated and unsafe condition of the building, the building’s owner appealed to the Board. Following a hearing, the Board upheld the condemnation and demolition order. The owner then filed a petition for writ of certiorari with the trial court, requesting, inter alia, that the demolition order be vacated. Following a hearing, the trial court found that the Board’s decision had been supported by substantial and material evidence and accordingly upheld the Board’s affirmance of the condemnation and demolition order. The owner filed a motion to alter or amend the judgment, which the trial court denied. The owner timely appealed to this Court. Discerning no reversible error, we affirm.

The trial court terminated Mother’s parental rights on grounds of abandonment by failure to establish a suitable home, substantial noncompliance with permanency plans, persistence of conditions, and willingness and ability to assume legal and physical custody or financial responsibility of the children. Mother appeals both the grounds for termination and that termination was in her children’s best interest. Discerning no error, we affirm.

The parents of a severely abused child appeal the termination of their parental rights. When the child was less than five months old, his primary care physician became alarmed upon discovering that his head circumference had grown at an abnormal rate. Upon being admitted to the hospital for tests, the medical staff noted retinal hemorrhaging and the presence of blood in his cerebrospinal fluid, both of which indicated inflicted trauma. A pediatrician with a subspecialty in child abuse examined xrays that revealed healing fractures in the anterior lateral aspect of multiple ribs, which also indicated child abuse. When investigators from the Tennessee Department of Children’s Services (“DCS”) interviewed the parents, the father admitted to observing the mother hitting the child in the head and covering his face with a blanket to muffle his cries. The mother told investigators she squeezed and shook the child, but it was the father who struck the child in the head. DCS placed the child in foster care, and both parents were charged with aggravated child abuse. While the parents remained incarcerated, DCS filed a petition to terminate their parental rights on two grounds, severe child abuse pursuant to Tenn. Code Ann. §§ 36-1-113(g)(4) and 37-1-102(b)(27) and failure to manifest an ability and willingness to assume custody or financial responsibility pursuant to Tenn. Code Ann. § 36-1-113(g)(14). Following a trial, the court found that both grounds had been proven and that termination of the parents’ rights was in the child’s best interest. We reverse the trial court’s ruling that DCS proved the ground of failure to manifest an ability and willingness to assume custody or financial responsibility; however, we affirm the trial court in all other respects. Accordingly, we affirm the termination of both parents’ parental rights.