APPELLATE COURT OPINIONS

Defendant, Marcus Gergish, was found guilty by a jury of one count of criminally negligent homicide and two counts of attempted aggravated robbery and was sentenced to serve an effective twenty-one-year sentence in the Department of Correction. In this appeal, Defendant argues: (1) that the evidence was insufficient to support his convictions; (2) that the prosecutor committed prosecutorial misconduct by destroying evidence; (3) that the prosecutor committed prosecutorial misconduct by misleading the jurors and misstating evidence; (4) that the trial court’s denial of a motion to continue, motion for expert funding, and refusal to allow the defense to call a witness on Defendant’s behalf denied Defendant a fair trial; (5) that the trial court failed to instruct the jury on the issues of dying declarations and lost or destroyed evidence; (6) that the trial court failed to act as the Thirteenth Juror; and (7) that the cumulative effect of all the errors denied Defendant a fair trial. Following a careful review of the record, we find that Defendant’s motion for new trial was not timely filed. Therefore, all of Defendant’s issues except for sufficiency of the evidence are waived, and we decline to exercise our discretion to review the waived issues for plain error. Defendant’s convictions are affirmed.

A hearing panel of the Board of Professional Responsibility determined that a Knoxville attorney should receive a public censure based on his violations of Rules of Professional Conduct 1.3, 1.4, and 8.4(a). The trial court affirmed the hearing panel’s decision. After careful consideration, we affirm the judgment of the trial court. 

Defendant, Francisco G. Parvin, was indicted by the Greene County Grand Jury for aggravated assault resulting in serious bodily injury in Count 1 and aggravated assault by the use of a deadly weapon in Count 2. Following a jury trial, Defendant was convicted in Count 2 of the lesser-included offense of assault and sentenced to 11 months and 29 days, with 120 days to be served in jail and the remainder to be suspended on probation. The record does not contain a judgment form in Count 1, but the record indicates that only Count 2 was submitted for trial. Presumably, Count 1 was dismissed. The offenses in both counts were against the same victim. In this appeal as of right, Defendant contends that the evidence was insufficient to support his conviction in Count 2. After a careful review of the entire record and the parties’ briefs, we conclude that the evidence was sufficient to sustain Defendant’s conviction. Accordingly, we affirm the judgment of the trial court.

The trial court granted a default judgment against the appellant for claims of conversion, unjust enrichment, and malicious prosecution.  Immediately after granting the default judgment, the trial court awarded the appellee damages without hearing proof.  The appellant filed a motion to set aside the default judgment.  The trial court denied the appellant’s motion.  We affirm the trial court’s decision in all regards except for its award of damages.  The case is remanded for a hearing on damages.

This is an invasion of privacy case filed by Betty Graham. It arises out of disclosures made by the defendants in an underlying health care liability action. In the underlying case, the defendants moved to dismiss Graham’s case on the ground that she (1) had failed to file a statutory-mandated pre-suit notice and (2) had failed to file with her complaint a certificate of good faith, all as required by the Health Care Liability Act (the Act). Graham claims that she could not comply with the Act because the defendants failed to provide her with the relevant medical records. To demonstrate that they had complied or attempted to comply with Graham’s requests for records, the defendants filed in the earlier case two affidavits detailing their response to her requests. After the dismissal of her health care liability action, Graham filed this case for invasion of privacy, alleging that the defendants had wrongfully disclosed her personal medical information by filing the affidavits in the underlying case. The trial court granted the defendants’ motions to dismiss. Graham appeals. We affirm

This is the second appeal of this easement case.  Appellants, the servient land owners, appeal the trial court’s award of a monetary judgment in favor of Appellees, the owners of the dominant estate.  On remand, the parties agreed to have the trial court determine the precise location of the easement, but the trial court refused to hear the issue, and also refused to allow Appellants to make an offer of proof.  We vacate the damage award due to the trial court’s failure to make sufficient findings.  We also conclude that the trial court erred by refusing to determine the location of the easement.  Vacated and remanded.

I respectfully dissent from the majority opinion in this case.

From the majority’s recitation of the facts in this case, we can all agree that the complainant, Ms. McKeogh, did not get good service overall from Mr. Garland’s office. However, the majority’s recitation of the facts also makes it clear that the problems of which Ms. McKeogh complains arise from the actions or inactions of Mr. Garland’s staff, particularly Ms. Harris and Ms. Snyder.
 

This is an appeal from the grant of summary judgment in favor of Appellee. Following Appellant’s knee surgery, Appellee provided Appellant transportation, by wheelchair van, from the rehabilitation hospital to a follow-up appointment with his surgeon. Prior to transport, Appellant signed an exculpatory agreement, releasing Appellee from all claims of ordinary negligence. Appellant was injured when he fell while trying to enter the van and filed suit against Appellee for negligence. The trial court granted summary judgment in favor of Appellee, finding that the exculpatory agreement was enforceable. Discerning no error, we affirm.

This case involves a post-divorce motion for contempt. In her motion, Appellant/Wife averred that Appellee/Husband was in violation of the final decree of divorce. The trial court did not find Appellee in contempt, but entered an order enforcing its final decree of divorce regarding sale of the marital residence, Appellant’s access to the marital residence, and division of Appellee’s 401-K. The trial court also declined to award Appellant half of Appellee’s 2015 tax return. Because the trial court’s order, on the motion for contempt, appears to deviate from its previous order regarding division of Appellee’s 401-K, we reverse this portion of the trial court’s order. The order is otherwise affirmed.

Defendant, Roy Allen Carey, was convicted of hindering a secured creditor. He received an alternative sentence of two years’ probation after serving ten days in incarceration. On appeal, he argues that (1) the evidence was insufficient to support his conviction; (2) the amended indictment was void; (3) the bill of particulars was insufficient; (4) the trial court committed error by not providing the requested jury instructions; and (5) the lack of notice as to the prohibited conduct violated his due process rights. After review, we find that the evidence was insufficient to support a conviction for hindering a secured creditor and that the trial court erred by not providing a jury instruction on the creation of a security interest. The judgment of the trial court is reversed and vacated.

The pro se Petitioner, Barry N. Waddell, appeals the denial of his second motion to reopen his petition for post-conviction relief.  Following our review, we dismiss the appeal for lack of jurisdiction because the Petitioner failed to comply with the statutory requirements governing an appeal from the denial of a motion to reopen post-conviction proceedings.    

The Petitioner, James Edward Bostic, Jr., appeals from the Davidson County Criminal Court’s summary dismissal of his petition for post-conviction relief from his guilty plea conviction of possession with intent to manufacture, deliver, or sell less than one-half gram of cocaine, a Class C felony, for which he is serving a twelve-year sentence as a Range III, persistent offender. Because the post-conviction court erred in summarily dismissing his petition as untimely, we reverse its judgment and remand the case for further proceedings.

The Defendant, Anthony Dowlen, appeals the Rutherford County Circuit Court’s order revoking his community corrections sentence for his convictions for robbery, possession of a weapon, and evading arrest, and ordering him to serve the remainder of his effective twenty-five-year sentence in confinement. The Defendant contends that the trial court abused its discretion by revoking his community corrections sentence. We affirm the judgments of the trial court.

The Defendant, Kendall J. Summers, appeals from the Giles County Circuit Court’s revocation of his probation for his convictions for possession with the intent to sell 0.5 gram or more of methamphetamine, initiation of the process to manufacture methamphetamine, and felony possession of drug paraphernalia and its order that he serve the remainder of his effective eight-year sentence in confinement. The Defendant contends that the trial court abused its discretion by revoking his probation. We affirm the judgment of the trial court.

An inmate in the custody of the Tennessee Department of Correction filed a petition for writ of certiorari challenging the revocation of his parole. Because the inmate failed to file his petition within the sixty-day period required by statute, the chancery court lacked jurisdiction. We, therefore, affirm the chancery court’s judgment dismissing the case.

The Defendant, Gabriel Bandy, pleaded guilty to violating his probation. The court revoked his probation, denied his request for community corrections, and ordered the remainder of his twelve-year sentence to be served in confinement. On appeal, the Defendant contends that the trial court abused its discretion by denying community corrections. We affirm the judgment of the trial court.

The Petitioner, Joey Godwin, appeals the Trousdale County Circuit Court’s denial of his petition for habeas corpus relief from his 2007 convictions for three counts of possession with the intent to sell 0.5 gram or more of cocaine and his effective ten-year sentence. The Petitioner contends that the habeas corpus court erred by summarily denying relief because his concurrent sentences were in direct contravention of Tennessee Code Annotated section 40-20-111(b) (2014). We affirm the judgment of the habeas corpus court.

The defendant, Comer Thomas Vance, appeals his Bedford County Circuit Court jury conviction of felony theft, claiming that the evidence was insufficient to support his conviction and that the prosecutor’s closing argument was improper. Discerning no error, we affirm.

Former inmate and her husband filed a complaint against the State of Tennessee, alleging that state employees negligently supervised and retained a prison guard who sexually assaulted the inmate.  The Tennessee Claims Commission determined it lacked subject matter jurisdiction to hear the claim and dismissed the complaint.  We conclude that the former inmate’s claim falls within a category of claims for which the Claims Commission has exclusive jurisdiction, specifically the “[n]egligent care, custody and control of persons.”  Tenn. Code Ann. § 9-8-307 (Supp. 2016).  We also conclude the complaint does not seek to hold the State liable for the willful, malicious, or criminal act of a state employee.  Accordingly, we reverse.

Defendant, Jimmy Newell, appeals from the trial court’s denial of his motion to withdraw his guilty pleas in multiple cases. Petitioner entered guilty pleas in several cases at a single hearing as part of a “global plea deal” and received a total effective sentence of four years’ incarceration. Defendant filed a pro se motion to withdraw his pleas. Counsel was appointed to represent him. Following an evidentiary hearing, the trial court denied Defendant’s motion. Defendant appeals the trial court’s ruling, asserting that his pleas were entered unknowingly and involuntarily and that his trial counsel provided ineffective assistance. Having reviewed the entire record and the briefs of the parties, we affirm the judgment of the trial court.

This appeal concerns the dismissal of a health care liability action for noncompliance with the Health Care Liability Act, specifically Tennessee Code Annotated § 29-26-121 (Supp. 2016). Before filing this action, the plaintiff gave timely written pre-suit notice of her health care liability claim, including the required medical authorizations, to all potential defendants. But when she filed her complaint, the plaintiff failed to provide copies of the medical authorizations as required by statute. Both defendants filed motions to dismiss based on the missing documents. The trial court determined that the plaintiff had substantially complied with the statute and that the defendants were not prejudiced by the omission. Even so, the court dismissed the complaint with prejudice after concluding that strict compliance with the statute was required when the defendant was a governmental entity. Upon review, we conclude that substantial compliance with the documentation requirement in Tennessee Code Annotated § 29-26-121(b) is sufficient even when the defendant is a governmental entity. Thus, we reverse the dismissal of the complaint.

William Lewis (“Employee”) worked for the Tennessee Department of Transportation (“TDOT”) as a Highway Maintenance Worker I from 2002 until June 2010. During the course of his employment, he sustained compensable injuries to his right shoulder, left shoulder, and right eye. The claims arising from these injuries resulted in settlements or awards, all of which provided that Employee retained a right to reconsideration pursuant to Tennessee Code Annotated section 50-6-241(d). On May 24, 2010, Employee collapsed while flagging traffic. He stated that his knees gave out at that time. Employee subsequently filed a claim for bilateral knee injuries, and petitions for reconsideration of the three previous settlements. After hearings on June 14, 2014, and December 7, 2015, the Commission issued a written decision. The Commission awarded ninety percent (90%) permanent partial disability to both legs for the May 24, 2010 injury, but declined to award additional benefits for the reconsideration claims. TDOT has appealed from the Commission’s decision pertaining to Employee’s knee injuries, and Employee has appealed from the decision to deny additional benefits on the reconsideration claims. 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 on the award of disability to the legs, but reverse on the reconsideration claims and remand to the Commission to recalculate Employee’s disability regarding his shoulders.

Mother appeals judgment holding her in criminal contempt of court, contending that the court lacked jurisdiction to enforce the order as to which she was found in contempt, that she was not given the notice required by Tennessee Rules of Criminal Procedure 42(b), and that she was improperly served with the contempt petition. Upon a thorough review of the record, we affirm the judgment.

The Defendant, Lawrence A. Gray, entered a guilty plea to three counts of aggravated robbery and two counts of attempted aggravated robbery with the trial court to determine sentencing. After a sentencing hearing, the trial court imposed an effective sentence of twelve years. On appeal, the Defendant asserts that the trial court improperly imposed a twelve-year sentence. We affirm the trial court’s judgments.

Petitioner, Donnell V. Booker, appeals the denial of his second petition for habeas corpus relief in which he argues that his guilty plea to an “out of range” sentence was illegal. Because Petitioner’s claim has been previously determined and he fails to state a cognizable claim, we affirm the judgment of the trial court.