APPELLATE COURT OPINIONS

Judy A. Allen (“Allen”) filed suit contesting the Last Will and Testament of Ida Lucille Land dated May 9, 2011 (“the Will”), which was admitted to probate in October of 2015. The case proceeded to trial before a jury, and after trial the Chancery Court for Hamilton County (“the Trial Court”) entered judgment on the jury’s verdict finding that there was undue influence arising from a confidential relationship between Kenneth L. Hill (“the Executor”) and his wife, Pauline Hill, and Ida Lucille Land (“Deceased”); that the Executor and Pauline Hill unduly benefitted from the Will; and that the Executor and Pauline Hill failed to prove by clear and convincing evidence that the transaction was fair. The Executor appeals to this Court raising issues regarding whether the naming of a person as executor is a sufficient benefit to trigger the presumption of undue influence and whether the Trial Court erred in denying the Executor’s motion for directed verdict. We find and hold that there is material evidence supporting the jury’s verdict that the Executor and Pauline Hill exercised undue influence, that they received a benefit under the Will, and that the Executor and Pauline Hill failed to prove that the transaction was fair. We further find and hold that the Trial Court did not err in denying the motion for directed verdict. We, therefore, affirm the Trial Court’s June 8, 2017 Final Decree.

A Monroe County jury convicted the Petitioner, Sterling Davis, of possession of 300 grams or more of cocaine with intent to sell, possession of more than half an ounce of marijuana with intent to sell, and possession of drug paraphernalia. The trial court imposed an effective sentence of forty years, and this court affirmed the judgments on appeal. State v. Sterling Jerome Davis, No. E2012-01398-CCA-R3-CD, 2013 WL 6047558, at *1 (Tenn. Crim. App., at Knoxville, Nov. 14, 2013), perm. app. denied (Tenn. May 13, 2014). In a petition for post-conviction relief, the Petitioner raised multiple issues not relevant to this appeal. The post-conviction court denied relief after a hearing. On appeal, the Petitioner raises the following issues: (1) the State failed to disclose facts that would be classified as Brady material; (2) the State willfully omitted facts which would have invalidated the search warrant in this case; and (3) the post-conviction court abused its discretion when it quashed a subpoena. We affirm the post-conviction court’s judgment.

The Defendant, William H. Young, appeals as of right from the Hamilton County Criminal Court’s denial of his request for judicial diversion. The Defendant was convicted following a bench trial of criminally negligent homicide, and he was sentenced to eighteen months of supervised probation. On appeal, the Defendant contends that the trial court abused its discretion by relying solely on the circumstances of the offense in its decision to deny judicial diversion to the exclusion of other supporting factors. According to the Defendant, the trial court’s decision to deny his request for judicial diversion was based on the offense that he was convicted of rather than the applicable factors. Discerning no error, we affirm the judgment of the trial court.

This is the second appeal arising from a divorce action. In this appeal, the wife contends the trial court erred by depriving her of the post-trial increase in her proportionate share of marital investment accounts. On remand, the trial court held that the wife was awarded a sum certain as of the date of divorce; thus, the subsequent increase in the value of the account was the husband’s property. We affirm.

Victory Thayer (“Employee”) alleged that he sustained a compensable injury in 1997 in the course and scope of his employment with United Parcel Service (“Employer”). Employer and its insurer, Liberty Mutual Insurance Company (“Insurer”), filed a motion for summary judgment. The trial court granted their motion on the ground that the one-year statute of limitations barred Employee’s claim. Employee has appealed that decision. The 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 pursuant to Tennessee Supreme Court Rule 51. We affirm the judgment.

This is a direct appeal of a disciplinary proceeding against a Brentwood attorney arising out of the mismanagement of client funds held in trust. A hearing panel of the Board of Professional Responsibility determined that the attorney had violated Rules 1.15 (safekeeping property and funds) and 8.4 (misconduct) of the Tennessee Rules of Professional Conduct. The hearing panel recommended that the attorney be suspended for sixty days, to be followed by two years of probation under the supervision of a practice monitor, and that he complete fifteen hours of continuing legal education on law office management and trust accounting procedures. The chancery court modified the hearing panel’s decision by increasing the periods of suspension and probation and by imposing additional conditions of probation. We hold that the hearing panel’s decision was supported by material and substantial evidence and was not arbitrary, capricious, or an abuse of discretion. The chancery court, therefore, erred in modifying the hearing panel’s decision. We reverse the judgment of the chancery court and affirm the hearing panel’s decision.

A creditor obtained a judgment in Minnesota and sought to authenticate and enforce the judgment in Tennessee, where the judgment debtor resided and had assets. The judgment debtor objected to the creditor’s complaint because the affidavit accompanying the complaint was not notarized, as required by law. The creditor’s attorney subsequently filed a corrected affidavit that was notarized, and the trial court entered an order authenticating and enrolling the foreign judgment. The judgment debtor appealed, and we affirm.  

A Williamson County jury convicted Petitioner, James Michael Naive, of the first degree premeditated murder of his sister. The trial court sentenced Petitioner to life imprisonment. On appeal, this court affirmed the judgment of the trial court. State v. James Michael Naive, No. M2012-00893-CCA-R3-CD, 2013 WL 4505395 (Tenn. Crim. App. Aug. 21, 2013), perm. app. denied (Tenn. Dec. 11, 2013). Petitioner filed a postconviction petition, and the post-conviction court denied relief following an evidentiary hearing. On appeal, Petitioner maintains that he received the ineffective assistance of counsel in that trial counsel’s defense strategy was unlikely to be successful, and trial counsel failed to advise Petitioner that his testimony was essential to his defense. After review, we affirm the post-conviction court’s judgment.

In this conservatorship action, three of the conservatee’s five adult children filed a petition for conservatorship over the conservatee in May 2015 and subsequently filed an emergency petition for conservatorship in June 2015. Following a hearing, the conservatorship court granted the emergency petition, naming one of the petitioners as conservator over the conservatee’s property and one of the petitioners as conservator over the conservatee’s person. The conservatee’s two non-petitioning children subsequently filed a motion in opposition to the conservatorship and requested that it be dissolved. The conservatee then filed an answer to the petition and motion to dismiss the conservatorship. Following various subsequent motions and a hearing conducted in September 2015, the conservatorship court entered an order in October 2015, inter alia, appointing East Tennessee Human Resources Agency (“ETHRA”) as an emergency interim conservator over the conservatee’s property but maintaining the originally named petitioner as conservator over the conservatee’s person. The conservatorship court subsequently memorialized these appointments as permanent in an order entered in December 2015. Upon motions for attorney’s fees filed by the petitioners’ counsel in January 2016, the conservatorship court found that the attorney’s fees requested were reasonable and granted them in an order entered in March 2016. On March 29, 2016, ETHRA filed the last of three successive inventory and property management plans. The conservatee died on May 2, 2016. Upon multiple motions requesting fees, the conservatorship court conducted a hearing and subsequently entered an order on June 21, 2016, inter alia, awarding reasonable fees and expenses to the attorney ad litem, the conservator of the person, and the petitioners’ counsel and former counsel. ETHRA filed a motion to enter final accounting on August 25, 2016, and concomitantly filed a motion requesting $9,112.50 in fees for the services of its representative agent. In September 2016, the petitioners’ counsel filed additional requests for attorney’s fees, and in October 2016, ETHRA’s counsel filed a motion for attorney’s fees. On October 6, 2016, ETHRA filed a motion to close the conservatorship. The petitioners subsequently filed an objection to the final accounting, and the two non-petitioning children filed separate objections to the petitioners’ supplemental motions for attorney’s fees filed subsequent to the conservatee’s death. Following two hearings, the conservatorship court entered an order on March 28, 2017, granting ETHRA’s motion to close the conservatorship and motions for its representative’s fees and attorney’s fees. The conservatorship court declined to consider the petitioners’ pending supplemental motions for attorney’s fees, referring those to the probate court in a subsequent order. The conservatorship court also referred any claims arising from the petitioners’ objections to the final accounting to the probate court. The petitioners have appealed, asserting improper transfer to probate court of their pending motions requesting attorney’s fees, a lack of itemization of the services provided by the ETHRA representative, and deficiencies in the final accounting. Having determined that the conservatorship court improperly transferred to the probate court the petitioners’ motions for attorney’s fees without making necessary findings of fact and improperly closed the conservatorship without making findings of fact concerning the petitioners’ objections to the final accounting, we vacate those portions of the judgment. We affirm the undisputed grant of attorney’s fees to ETHRA’s counsel. We remand for entry of findings of fact and conclusions of law concerning the petitioners’ objections to the final accounting and concerning whether the attorney’s fees requested in the petitioners’ counsel’s pending attorney’s fee motions were incurred in relation to the conservatorship and, if so, whether reasonable attorney’s fees should be granted upon each of these motions. We also direct the conservatorship court to enter an order on remand directing ETHRA to present a detailed explanation of the basis for its representative’s claim for fees and expenses for the conservatorship court’s consideration based upon the factors provided in Tennessee Code Annotated § 34-1-112(a) (2015).

Trust beneficiary filed suit against co-trustees and various business entities in tort for the alleged wrongful withholding of distributions. Defendants filed a motion to dismiss based on several grounds. The trial court dismissed trust beneficiary’s complaint relying on each of the grounds asserted by the defendants. We affirm the dismissal of the complaint based on the statute of limitations. We also grant reasonable attorney’s fees, costs, and expenses incurred by defendants on appeal.

This is a contract dispute between the developer and the builder of a residential property.  The developer claimed that the builder was not in compliance with the terms of the contract and removed the builder from the project. The trial court found that the developer breached the contract first by removing the builder from the property without providing it with an opportunity to cure the problems the developer identified and awarded damages to the builder. The developer appeals the decision by the trial court, and we affirm the trial court’s judgment.

Defendant, Marlon Boyd, was convicted of first degree murder, aggravated assault, and possession of a firearm by a convicted felon. The trial court imposed a total effective sentence of life without parole plus 30 years. On appeal, Defendant argues (1) that the trial court erred in denying his motion to sever the count of the indictment alleging possession of a firearm by a convicted felon from the other charges; (2) that the trial court abused its discretion in allowing the State to use Defendant’s prior convictions for impeachment purposes; and (3) that the evidence is insufficient to support his convictions. Upon our review of the record, we find no reversible error and affirm the judgments of the trial court.

The Petitioner, Allen Booker, appeals the denial of his petition for post-conviction relief, arguing that he failed to receive due process at his trial or in the post-conviction evidentiary hearing and the post-conviction court erred in finding that he received effective assistance of trial counsel. Following our review, we affirm the judgment of the post-conviction court.

A Shelby County Criminal Court Jury convicted the Appellant, Maurice Baxter, of aggravated rape, aggravated burglary, and theft of property valued more than $1,000, and he received an effective sentence of fifty-eight years in confinement. On appeal, the Appellant contends that the evidence is insufficient to support the convictions, that the trial court erred by allowing the jury to hear that his DNA profile was in the CODIS database, that the trial court erred by allowing the defense’s DNA expert to testify for the State, and that the State committed prosecutorial misconduct during its rebuttal closing argument. Based upon the oral arguments, the record, and the parties’ briefs, we conclude that the defense expert’s testifying for the State constitutes reversible error. We also conclude that the State committed prosecutorial misconduct and that the cumulative effect of that error further warrants reversal. Accordingly, the Appellant’s convictions must be reversed and the case remanded to the trial court for further proceedings consistent with this opinion.

I write separately for the sole purpose of reiterating my belief that a prosecutor’s error in arguments to a jury should not be designated as “prosecutorial misconduct” or other words of similar import. See State v. Timothy McKinney, No. 2016-00834-CCA-R3-CD, 2018 WL 1055719 (Tenn. Crim. App. Feb. 23, 2018), Woodall, dissenting.

The Defendant, Michael A. Flippen, Jr., entered a guilty plea to second degree murder, with the length of his sentence to be determined by the trial court. Following a hearing, the Defendant received a twenty-year sentence to be served in the Tennessee Department of Correction. On appeal, the Defendant challenges the length of his sentence, arguing that the trial court abused its discretion in applying certain enhancement factors. After review of the record and applicable law, we affirm the judgment of the trial court.

The defendant, the alleged guarantor of the obligations of BPC of Memphis, LLC, under a lease agreement, appeals the grant of summary judgment in favor of the plaintiff, finding the defendant personally liable for the tenant’s obligations under the lease. BPC, the tenant, occupied the leased premises from December 2012 until August 2015, at which time it stopped paying rent. After BPC and the defendant refused the plaintiff’s demands for payment, the plaintiff commenced this action against BPC and the defendant as the guarantor. In the answer to the complaint, the defendant denied signing any document that purports to establish his personal liability. The plaintiff filed a motion for summary judgment that was properly supported by a statement of undisputed facts and affidavits pursuant to Tenn. R. Civ. P. 56. The defendant’s response was supported by his affidavit in which he disputed the plaintiff’s statement of fact that he signed “the lease” or “the Personal Guarantee section” of the lease. The chancery court granted the plaintiff’s motion for summary judgment stating, in part, “[i]n the face of the mountain of evidence in the record submitted by Plaintiff, Defendants had the burden to bring forward evidence other than Mr. Panchikal’s blanket denial in order to create a genuine issue of material fact,” and “Defendants failed to meet their burden.” The court also stated it was “mindful that Defendants have attempted to put into question Paragraphs 10, 21, and 27 in Plaintiff’s Statement of Undisputed Fact.” This appeal followed. We have determined that the defendant created a genuine dispute of a material fact by stating, inter alia, in his affidavit that “the documents claimed to bear my signature by the Plaintiffs are a forgery,” and “I never executed any guaranty section on any lease, contract or other document.” Accordingly, we reverse and remand for further proceedings.

Petitioner, Roy Smith, was convicted at trial of several drug-related offenses and sentenced to twelve years to be served consecutively to a prior aggregate sentence of thirty-seven years. Petitioner filed a petition for post-conviction relief, alleging that he received ineffective assistance of counsel when trial counsel advised him to reject a favorable plea offer in favor of attempting to have the charges dismissed at trial based on a jurisdictional argument. The post-conviction court denied relief. Petitioner now appeals, asking this Court, among other things, to require the State to re-extend the alleged plea offer pursuant to Lafler v. Cooper, 566 U.S. 156, 174 (2012). We decline and affirm the judgment of the post-conviction court.

The Defendant, Larry Franklin Mann, appeals his convictions following a jury trial in 2001 for attempted first degree murder, aggravated assault, and especially aggravated kidnapping, for which he received an effective sentence of twenty-five years. On appeal, the Defendant maintains that the trial court erred in failing to instruct the jury in accordance with State v. White, 362 S.W.3d 559 (Tenn. 2012). We conclude that the trial court’s failure to issue the instruction was harmless beyond a reasonable doubt, and we, therefore, affirm the judgments of the trial court.

This appeal involves a plaintiff with a personal injury claim who has challenged the validity of a declaratory judgment involving the defendant tortfeasor and his insurer because the personal injury plaintiff was not made a party to the declaratory judgment action. The personal injury plaintiff brought an action for damages against the defendant tortfeasor in December 2013 in Hamilton County, prior to the filing of the instant declaratory judgment action, based upon an automobile accident that occurred in December 2012. The defendant tortfeasor in the personal injury action reportedly failed to notify his insurance company of the lawsuit or cooperate with his insurance company regarding an investigation into the accident, which allegedly amounted to a breach of the automobile insurance policy between them. In March 2015, the insurance company filed the instant action in the Bradley County Chancery Court against the defendant tortfeasor, seeking a declaratory judgment that the insurance company had no duty to defend or indemnify the defendant tortfeasor based on his alleged breach of the insurance contract. In June 2015, the Bradley County Chancery Court entered a declaratory judgment against the defendant tortfeasor, holding that the insurer had no duty to defend or indemnify him. In June 2017, the personal injury plaintiff filed a petition to set aside that declaratory judgment pursuant to Tennessee Rule of Civil Procedure 60.02, alleging that she was a missing indispensable party to the declaratory judgment action and requesting to intervene therein. Following a hearing, the Bradley County Chancery Court denied the personal injury plaintiff’s petition. The personal injury plaintiff has appealed. Having determined that the personal injury plaintiff had a sufficient interest in the declaratory judgment action and was therefore an indispensable party, we set aside the underlying declaratory judgment as void for lack of subject matter jurisdiction.

The Appellant, Geremy Paul Mathis, was convicted by a Coffee County Circuit Court Jury of initiating a process intended to result in the manufacture of methamphetamine, a Class B felony. The trial court sentenced the Appellant as a Range I, standard offender to eleven years in the Tennessee Department of Correction. On appeal, the Appellant contends that the trial court erred by (1) denying his motion to suppress the “meth lab” discovered after an officer ordered the Appellant to exit the vehicle in which he was a passenger, (2) denying his motion for mistrial after a defense witness made repeated references to the Appellant’s previous incarceration, and (3) refusing to grant the alternative sentence of community corrections. The Appellant further contends that the evidence was not sufficient to sustain his conviction. Upon review, we affirm the judgment of the trial court.

I respectfully disagree with the conclusion reached by the majority in this case. In this appeal, the Petitioner contends that he received ineffective assistance of counsel at the plea negotiation stage. Specifically, the Petitioner argues that trial counsel was deficient in proceeding to trial based on an erroneous jurisdictional argument. As a result, the Petitioner argues that, but for trial counsel’s erroneous advice, he would have accepted the State’s more favorable plea offer. The State argues that the Petitioner has failed to overcome the presumption that trial counsel exercised reasonable judgment in all strategic decisions. Moreover, the State asserts that because the Petitioner has failed to prove he would have accepted the ten-year offer extended to him instead of the twentyyear offer, he has failed to prove prejudice. For the reasons that follow, I would have reversed the judgment of the post-conviction court and remanded this matter for a rehearing. The facts underlying the Petitioner’s convictions stem from the execution of a search warrant upon his home resulting in the discovery of oxycodone and several hundred dihydrocodeinone pills. State v. Roy Allen Smith, No. M2014-01172-CCA-R3- CD, 2015 WL 3550106, at *1 (Tenn. Crim. App. June 8, 2015) perm. app. denied (Tenn. Oct. 15, 2015). The Petitioner was ultimately convicted after a jury trial of simple possession of a Schedule II controlled substance, possession of a Schedule III controlled substance with the intent to manufacture, deliver, or sell, maintaining a dwelling used for keeping or selling controlled substances, and possession of drug paraphernalia, for which he received an effective twelve-year sentence. Id. The trial court ordered the Petitioner’s twelve-year sentence to be served consecutively to six prior convictions with an aggregate sentence of thirty-seven years for which the Petitioner had been on probation at the time that the instant offenses were committed. Roy Allen Smith, at *3. In total, it appears that the Petitioner received an effective forty-nine-year sentence, the bulk of which is for driving offenses.

A mother appeals the termination of her parental rights. The juvenile court found four statutory grounds for termination of parental rights: abandonment by failure to visit, abandonment by failure to provide a suitable home, substantial noncompliance with the permanency plan, and persistence of conditions. The juvenile court also found that termination of the mother’s parental rights was in the child’s best interest. We conclude that the record contains clear and convincing evidence to support the grounds for termination and that termination is in the child’s best interest. Thus, we affirm the termination of the mother’s parental rights.

The Appellant, Andrea Spencer, appeals as of right from the Shelby County Criminal Court’s summary denial of his Tennessee Rule of Criminal Procedure 36.1 motion to correct an illegal sentence. The Appellant contends that the trial court erred because his motion stated a colorable claim for sentencing outside the statutory ranges and a Blakely v. Washington violation. Discerning no error, we affirm the judgment of the trial court.

Dedrick Wiggins (“Defendant”) was convicted by a Shelby County jury of second degree murder and sentenced to thirty-five years’ incarceration. In this direct appeal, Defendant contends that the trial court erred in admitting the victim’s statement under the dying declaration hearsay exception and that the evidence presented at trial was insufficient to support his conviction. Following a thorough review, we affirm the judgment of the criminal court.