APPELLATE COURT OPINIONS

This appeal of the denial of post-conviction relief is before this court pursuant to remand by the Tennessee Supreme Court, which vacated this court’s August 2015 opinion upholding the post-conviction court’s denial of post-conviction relief because the transcript of the post-conviction hearing was not included in the appellate record. In August 2001, the Petitioner, Horace E. Hollis, Jr., was charged in an eighty (80) count presentment with forty counts of aggravated sexual battery and forty counts of rape of a child. The sexual abuse was committed against the Petitioner’s two minor granddaughters by marriage and, based on the presentment, occurred every other weekend from October 2000 to July 2001. The counts in the presentment were identical except for the victim’s name and date range. Before trial, the Petitioner’s third appointed counsel agreed to sever the counts of the indictment into separate groups of four, one count of rape of a child and one count of aggravated sexual battery for each of the two victims, theoretically resulting in twenty separate trials. The Petitioner was acquitted at his first trial. At his second trial, the Petitioner was convicted of rape of a child and aggravated sexual battery of each victim, for which he received an effective sentence of forty (40) years’ incarceration. Following his second trial, the remaining counts of the presentment were dismissed by the State. Although the Petitioner presents a multitude of issues for our review, we consider his primary issue to be whether third counsel was ineffective in failing to require an election of offenses in his first trial, which resulted in an acquittal. Because there was no election of offenses in his first trial, the Petitioner further contends that third counsel was ineffective in failing to object to his second trial based on double jeopardy principles. Following a thorough review of the record and applicable authority, we affirm the judgment of the post-conviction court.

This is a healthcare liability action. After sustaining injuries as a result of alleged surgical error, Appellant filed this action against the surgeon and his medical group. Appellees moved to dismiss the action for failure to comply with the notice requirement of Tennessee Code Annotated Section 29-26-121(a)(2)(E). The trial court granted the motion to dismiss, and Appellant appeals. Discerning no error, we affirm and remand.

This appeal stems from a divorce proceeding where the wife was awarded a divorce on the ground of adultery. The husband appeals and raises several issues related to the trial court’s division of the marital estate. He also challenges the trial court’s award of alimony in solido to the wife. Having reviewed the record transmitted to us on appeal, we affirm the trial court’s division of the marital estate but vacate the award of alimony and remand for further proceedings consistent with this Opinion.

Defendant, Rodney Lee Scott, was found guilty by a jury of attempted voluntary manslaughter, aggravated assault, reckless aggravated assault, leaving the scene of the accident, and public intoxication as the result of an incident described as road rage on December 16, 2013. As a result of the convictions, Defendant received an effective sentence of six years. Defendant appeals, challenging: (1) the sufficiency of the evidence; (2) the denial of a motion to sever; (3) the denial of a motion in limine which sought to allow Defendant to cross-examine the victims about their criminal history; (4) his dual convictions for attempted voluntary manslaughter and aggravated assault; and (5) the trial court’s denial of a mistrial. After a review of the evidence and authorities, we affirm the judgments of the trial court with respect to Defendant’s convictions for attempted voluntary manslaughter, aggravated assault, leaving the scene of the accident, and public intoxication. Because reckless aggravated assault cannot be a lesser included offense of aggravated assault based upon fearing imminent bodily injury, we reverse and dismiss Defendant’s conviction for reckless aggravated assault. On remand, the trial court should enter judgment forms dismissing Counts Four and Seven of the indictment.

In 2012, the Petitioner, Tamir Clark, pleaded guilty to especially aggravated kidnapping, arson, especially aggravated robbery, and attempted first degree murder.  The Petitioner later filed a post-conviction petition alleging ineffective assistance of counsel and that his guilty plea was involuntary.  The post-conviction court denied the petition, and this Court affirmed the denial on appeal.  See State v.Tamir Clark, No. M2014-00618-CCA-R3-PC, 2014 WL 7191536, at *1 (Tenn. Crim. App., at Nashville, Dec. 18, 2014), perm. app. denied (Tenn. April 13, 2015).  On February 24, 2016, the Petitioner filed a petition for a writ of error coram nobis alleging newly discovered evidence.  In March 2016, the trial court issued an order dismissing the petition as time-barred.  We affirm the trial court’s judgment.

In 2008, a jury found the Petitioner, Tornita N. Crenshaw, guilty of two counts of aggravated robbery, one count of aggravated burglary, one count of especially aggravated kidnapping, and one count of coercion of a witness.  The jury also convicted three co-defendants related to these offenses.  On joint direct appeal, this Court affirmed the Petitioner’s convictions.  See State v.Lance Sandifer, Stephon Dante Cunningham, Tornita Crenshaw, & Glenard Thorne, No. M2008-02849-CCA-R3-CD, 2010 WL 5343202, at *1 (Tenn. Crim. App., at Nashville, Dec. 21, 2010), perm. app. denied (Tenn. May 26, 2011).  On April 11, 2016, the Petitioner filed a petition for a writ of error coram nobis alleging numerous errors.  The trial court issued an order on April 25, 2016, dismissing the petition as time-barred.  We affirm the trial court’s judgment.

The Appellant, Montez Adams, appeals the trial court's summary dismissal of his petition seeking habeas corpus relief.  The State has filed a motion asking this Court to affirm pursuant to Court of Criminal Appeals Rule 20.  Said motion is hereby granted.

Defendant, Victor Sharmell Sparkman, filed a motion pursuant to Tennessee Rule of Criminal Procedure 36.1, alleging that he received illegal sentences for his convictions of second degree murder, Range I, 33 years with a release eligibility of “violent 100%” and especially aggravated robbery, Range I, 33 years with a release eligibility of “violent 100%” pursuant to a negotiated plea agreement.  The trial court denied the motion without a hearing, and Defendant has appealed.  After a thorough review of the record, we affirm the judgment of the trial court.

This appeal concerns an effort to reduce an alimony obligation. James S. Schrade (“Husband”) filed a petition for reduction of alimony in the Probate and Family Court for Cumberland County (“the Trial Court”) against ex-wife Cassandra Jean Ament Schrade (“Wife”). Husband cited changed economic conditions that rendered him unable to meet his alimony obligation without tapping into his separate property. At trial, Husband also presented proof that a rebuttable presumption arose that Wife did not need the alimony as her adult children lived with her. The Trial Court found no material change in circumstances and also declined to find that the rebuttable presumption applied. Husband appeals. Finding the language of the marital dissolution agreement (“the MDA”) unequivocal and as market fluctuations are foreseeable, we affirm the Trial Court in its finding of no material change in circumstances. However, Husband presented sufficient proof to trigger the statutory rebuttable presumption for cohabitation with third parties, and we remand to the Trial Court for a determination on that issue. We affirm, in part, and, vacate, in part, the judgment of the Trial Court, and remand for further proceedings consistent with this Opinion.

The Defendant, Antonio Richardson, was convicted by a Shelby County Criminal Court jury of first degree premeditated murder. See T.C.A. §§ 39-13-202 (2014). The trial court sentenced the Defendant to life imprisonment. On appeal, he contends that (1) the evidence is insufficient to support his conviction and (2) the trial court erred by admitting in evidence a photograph of the victim from the crime scene. We affirm the judgment of the trial court.

The State of Tennessee (“the State”) attempted to divest Dateline NBC and NBCUniversal News Group of protection provided under Tenn. Code Ann. § 24-1-208, the press shield law. The Criminal Court for Knox County (“the Trial Court”) found and held that the State had failed to meet its burden under Tenn. Code Ann. § 24-1-208 and denied the State’s motion to divest. The State appeals. We find and hold that the State failed to prove by clear and convincing evidence both that “the information sought cannot reasonably be obtained by alternative means,” and that there is “a compelling and overriding public interest of the people of the state of Tennessee in the information.” Tenn. Code Ann. §§ 24-1-208(c)(2)(B) and (c)(2)(C). We affirm the judgment of the Trial Court denying the State’s motion to divest.

This appeal involves the plaintiffs’ complaint for breach of common law and statutory warranties, violations of the Tennessee Consumer Protection Act, and promissory estoppel regarding the purchase of drywall that was later found defective . The plaintiffs voluntarily dismissed their claim for breach of common law and statutory warranties, while the seller sought summary judgment. Following a hearing, the trial judge recused himself before ruling on the motion for summary judgment. Thereafter, he entered an order granting partial summary judgment. The new judge then entered a final order of dismissal, confirming the grant of summary judgment and dismissing the case in its entirety. The plaintiffs appeal , claiming that remand is appropriate because not all issues were resolved by the grant of summary judgment . We agree and reverse.

This appeal was filed by a purchaser who bought a parcel of real property in Hamilton County, Tennessee, at a delinquent tax sale. After the sale, the person who had owned the property at the time of the sale conveyed it to a married couple. The title agency, who assisted with the closing, the original owner, and the couple moved to redeem the property upon learning of the tax sale. The trial court granted their request, divested title from the tax sale purchaser, and vested it in the original owner. The tax sale purchaser appeals. We affirm as modified.

This is the second appeal of this case. In the first appeal, this Court affirmed the trial court’s grant of appellee’s petition to modify child custody and child support but vacated the trial court’s judgment with respect to appellant’s petition to modify alimony for lack of findings. On remand, the trial court found that appellant failed to establish a material change in circumstances justifying an increase in the alimony award that she was already receiving. Appellant appeals. Because appellant’s brief failed to comply with the applicable rules, we dismiss her appeal in its entirety. In addition, we deny appellee’s request for attorney’s fees. 

The Defendant, Travis Pallaria, appeals as of right from the Blount County Circuit Court’s revocation of his community corrections sentence. The Defendant cites evidence excusing his violation and contends that the trial court was unduly harsh and abused its discretion in ordering the Defendant to serve the balance of his sentence in confinement. Following our review, we affirm the revocation and confinement order of the trial court.

The Defendant, Billy Hill, was convicted by a Knox County Criminal Court jury of second degree murder, a Class X felony, for the 1986 killing of his mother. See T.C.A. § 39-2-211 (1986) (repealed 1989). The trial court sentenced the Defendant to twenty-four years‘ confinement. On appeal, the Defendant contends that (1) the trial court erred by denying his motions to dismiss based upon lost and destroyed evidence, a due process violation created by the extensive pre-indictment delay, and a violation of his right to a speedy trial, (2) the trial court erred by allowing improper witness testimony, (3) the trial court erred by denying his motion for a mistrial after a witness violated a court order prohibiting testimony about the Defendant‘s alleged violent conduct against the witness, (4) the trial court erred by refusing to provide a jury instruction relative to the State‘s obligation to corroborate his statements, and (5) the prosecutor engaged in misconduct during closing argument. We have also considered whether the statute of limitations for second degree murder had expired before the commencement of the prosecution. Although we affirm the Defendant‘s conviction, we remand for the entry of a corrected judgment reflecting the proper felony classification for second degree murder at the time of the offense.

The Appellant, Robreka Jay Quan Sullivan, was found guilty by a Davidson County Criminal Court Jury of aggravated robbery and aggravated burglary, and she received a total effective sentence of ten years.  On appeal, the Appellant challenges the sufficiency of the evidence sustaining her convictions.  Specifically, she contends that the victim’s testimony was not credible and that the State proved, at most, that she was involved in the disposition of stolen property.  Upon review, we affirm the judgments of the trial court.

In July 2012, the Petitioner, Michael Joseph Lugiai, Sr., entered a “best interests” guilty plea to four counts of aggravated assault.  He timely filed a petition for post-conviction relief alleging that he received ineffective assistance of counsel and that his plea was unknowing and involuntary.  Following a hearing on the petition, the post-conviction court denied relief.  After a thorough review, we affirm the judgment of the post-conviction court.

The Appellant, Eddie A. Medlock, is appealing the trial court’s order denying his petition for a writ of habeas corpus.  The State has filed a motion asking this Court to affirm pursuant to Court of Criminal Appeals Rule 20.  Said motion is hereby granted.

Former Husband and Wife owned a business together while they were married. In a post-divorce order, the trial court decreed that the business was to be wrapped up and sold. Former Husband failed to comply with the order and Former Wife filed a motion for a temporary restraining order (“TRO”) and a petition for civil contempt. The court granted Former Wife a TRO but did not rule on the petition for contempt. Former Wife filed a motion to set a hearing on her petition for contempt two years later, and the trial court dismissed the motion as moot. Former Wife appealed, and we reverse the trial court’s judgment. We conclude that this Court lacks subject matter jurisdiction over this appeal because the trial court failed to resolve all outstanding issues in the case.

This is a premises liability case. Appellant slipped and fell in a clear liquid on the floor of the St. Francis Hospital emergency room and filed suit against the hospital. In its answer, the hospital denied liability and alleged comparative fault on the part of Appellant and its housekeeping management service, Crothall Healthcare, Inc. Appellant amended her complaint to name Crothall as a defendant. Appellees filed motions for summary judgment. The trial court granted both motions, finding that Appellant had failed to show that Appellees had actual or constructive notice of a dangerous condition. Appellant appeals. Discerning no error, we affirm the trial court’s grant of summary judgment.

This is a teacher tenure case. Appellant, a tenured teacher employed by Appellee Shelby County Board of Education, was fired for insubordination and conduct unbecoming. Appellant appealed the Shelby County School Board’s decision to the Chancery Court for Shelby County. In a post-trial motion, Appellee petitioned the court to consider an email notification of the board’s decision that was sent to Appellant’s attorney. Specifically, Appellee argued that the email constituted statutory notice to the Appellant so as to start the thirty-day time period for filing an appeal of the board’s decision in the trial court. Tenn. Code Ann. 49-5-513(b). The trial court denied the motion as newly discovered evidence. We conclude that the email goes directly to the question of whether the Appellant’s petition was timely so as to confer subject-matter jurisdiction on the trial court. Accordingly, the trial court erred in treating the motion as one for permission to file “newly discovered evidence.” Because the trial court applied an incorrect legal standard in ruling on the admissibility of the email evidence and did not address the question of its subject-matter jurisdiction, we vacate the trial court’s order and remand for further proceedings.

Mother, who had been designated as the primary residential parent of her eight-year-old child, appeals an order changing the designation to the child’s Father, contending that the material change of circumstances since the entry of the original parenting plan, as found by the trial court, was not sufficient to justify the modification of custody. We have determined that the evidence does not show that the child’s well-being has been adversely affected by the difficulties the parents have encountered in complying with the parenting plan or that the modification is in the child’s best interest; accordingly, we reverse the order changing the designation of the primary residential parent. We reverse the order denying Mother’s request for attorney’s fees for services incurred in securing a judgment for back child support and remand for a determination of the amount of the award.

In 2011, the Petitioner, Herman Sowell, Jr., pleaded nolo contendreto attempted aggravated rape, attempted aggravated sexual battery, and incest, and the trial court sentenced him to fifteen years, at 30%.  The trial court ordered a “time served” sentence followed by probation.  In April 2013, after the statute of limitations had expired, the Petitioner filed a petition for post-conviction relief, using a separate case number but challenging as ineffective the representation of his counsel for the November 2011 case.  At some point thereafter, the trial court revoked the Petitioner’s probation.  The Petitioner amended his petition for post-conviction relief to challenge his November 2011 convictions.  The post-conviction court summarily dismissed the post-conviction petition.  We affirm the post-conviction court’s judgment.

This is a termination of parental rights case. Mother and Stepfather filed a petition to terminate the parental rights of Father to the child. The trial court found that the grounds of (1) abandonment for willful failure to visit as defined by Tennessee Code Annotated section 36-1-102(1)(A)(i), (2) abandonment for willful failure to visit by an incarcerated parent as defined by Tennessee Code Annotated section 36-1-102(1)(A)(iv), and (3) abandonment based on conduct demonstrating a wanton disregard for the welfare of the child had been proven by clear and convincing evidence. The trial court also found that termination was in the best interest of the child. Father appeals. We reverse the trial court’s finding of abandonment by willful failure to visit as defined by Tennessee Code Annotated section 36-1-102(1)(A)(i) but affirm the trial court in all other respects.