APPELLATE COURT OPINIONS

This is the third appeal involving liability on personal guaranties securing the debt of a transportation company. On remand after our second opinion, the trial court found that the transportation company and the lender, through the actions of its president, entered into a conspiracy to violate the Tennessee Consumer Protection Act (“TCPA”) and violated the duty of good faith and fair dealing, thereby relieving the guarantors of their liability under the continuing guaranties. Specifically, the trial court found that the guarantors were “consumers” under the TCPA, that the guarantors suffered an ascertainable loss due to the transportation company's deceptive acts, and that a violation of the TCPA can be a predicate tort for a civil conspiracy claim. Now, we reverse the trial court's finding that the transportation company's acts affected trade or commerce within the meaning of the TCPA. Accordingly, we also reverse the trial court's determination that the guarantors should be released from their guaranties.

The Defendant, James Patterson, was found guilty by a Knox County Criminal Court jury of attempt to commit aggravated rape, a Class B felony, and two counts of assault, Class A misdemeanors. See T.C.A. §§ 39-13-502 (2014) (aggravated rape), 39-12-101 (2014) (attempt), 39-13-101 (2010) (amended 2013) (assault). The trial court merged the assault convictions and sentenced the Defendant as a Range I, standard offender to concurrent terms of ten years for attempted aggravated rape and eleven months, twenty-nine days for assault, all to be served on probation. On appeal, the Defendant contends that the evidence is insufficient to support his attempted aggravated rape conviction. We affirm the judgments of the trial court

Petitioner, Eric O’Neil Turner, pled guilty to three counts of aggravated statutory rape, a Class D felony, with an agreed sentence of nine years for each count with one conviction to be served consecutively to the others for an effective eighteen-year sentence as a persistent offender. The sentence was suspended with time served, and Petitioner was immediately released on probation. Petitioner filed a petition for post-conviction relief alleging that his trial counsel provided ineffective assistance and that Petitioner’s guilty plea was unknowingly and involuntarily entered. Following an evidentiary hearing, the post-conviction court denied relief. Following a careful review of the record, we affirm the judgment of the post-conviction court

Plaintiff filed a complaint against the Governor, all state appellate court judges, the Tennessee Republican Party, and the Tennessee Democratic Party in which she alleges, inter alia, that the Tennessee Plan and statutes providing for the appointment of special and senior judges violate her state and federal constitutional rights. The defendants filed motions to dismiss, arguing that Plaintiff lacked standing and failed to state a claim for which relief can be granted. The trial court granted the motions to dismiss, and Plaintiff appeals. We affirm the trial court’s judgment dismissing Plaintiff’s complaint.  

In 1998, a jury convicted the Defendant, Billy Locke, for DUI, third offense. The trial court sentenced the Defendant to serve eleven months and twenty-nine days, 160 days of which was to be served in confinement with the remainder to be served on probation. In 1999, the Defendant pleaded guilty to burglary, evading arrest, assault, and possession of burglary tools, and the trial court sentenced him to an effective sentence of three years to run consecutively with any sentence he received for violating his probation for the DUI conviction. Fifteen years later, in January 2015, the Defendant filed a Tennessee Rule of Criminal Procedure 36.1 motion to correct an illegal sentence, arguing that the trial court was required to align his sentences consecutively because he was on probation and thus still “serving” his sentence for the DUI conviction when sentenced for the burglary-related convictions. The trial court denied the Defendant’s motion, and he appealed to this Court. After a thorough review of the record and applicable law, we affirm the trial court’s judgment.

In this divorce case, Carl Shane Merkel (Husband) contends that the trial court erred in its division of the marital estate, its award of child support made retroactive to the date that Starla Merkel (Wife) filed her complaint, and its monetary award to Wife's father, Terry McKeel, who was allowed by agreed order to intervene as an indispensible party. The award to McKeel was based on the trial court's finding that Husband owed McKeel $15,343.45 for unpaid loans made during the marriage by McKeel to Husband. We find no error in the division of the marital estate and the trial court's child support order. We hold that the issue of Husband's debt to McKeel was properly raised in McKeel's cross-claim and that the trial court had jurisdiction to dispose of this claim under the factual scenario reflected in the record. Wife raises the issue of whether there is evidence supporting the trial court's order decreeing that Chris Allen, a friend of hers, could not be in the presence of the two children born to Husband and Wife. We agree and modify the trial court's judgment to remove the prohibition barring Allen from having contact with the children. The judgment is affirmed in all other respects.

The dispositive issue in this wrongful death action is whether the pro se complaint filed by the decedent’s surviving spouse tolled the statute of limitations. The defendants, a hospital and a physician, filed a motion for summary judgment, arguing that the complaint was a nullity because the surviving spouse was asserting claims in a representative capacity and the complaint was not signed by a licensed attorney. It is undisputed that the decedent was survived by three heirs, the surviving spouse and two children of the decedent. The trial court denied the motion concluding that, although the pro se complaint could not assert the claims of the children, the surviving spouse could properly assert his own claims. The trial court also held that the initial complaint was sufficient to toll the statute of limitations and the claims of the children were not time barred because a licensed attorney signed and filed an amended complaint that related back to the original filing pursuant to Tenn. R. Civ. P. 15. Following a jury trial, the defendants were found liable and damages were awarded. The hospital appealed. We conclude the claims asserted by the surviving spouse were brought in a representative capacity on behalf of the decedent and were not his individual claims. Filing a complaint on behalf of another constitutes the practice of law and “[p]roceedings in a suit by a person not entitled to practice law are a nullity.” Bivins v. Hosp. Corp. of Am., 910 S.W.2d 441, 447 (Tenn. Ct. App. 1995). Because the complaint filed by the surviving spouse was a nullity, it did not toll the statute of limitations and no other complaint was filed within the statute of limitations. Therefore, the trial court erred in denying the hospital’s motion for summary judgment based on the statute of limitations defense. Accordingly, we reverse and remand with instructions to dismiss all claims and vacate all judgments against the hospital. 

Appellant, Marcus Traveno Cox, Jr., stands convicted (after merger of duplicate counts) of possession with intent to sell less than .5 grams of cocaine, possession with intent to sell more than one-half ounce but less than ten pounds of marijuana, possession of a Schedule III controlled substance (Lortab), possession of drug paraphernalia, and possession of a firearm with intent to go armed during the commission of a dangerous felony.  The trial court sentenced him to an effective sentence of nine years in the Tennessee Department of Correction.  On appeal, appellant argues that the indictment and jury instructions for the possession of a firearm charge were fatally deficient and that he received ineffective assistance of counsel.  Following our review, we affirm the judgments of the trial court.

A Maury County Circuit Court Jury convicted the Appellant, Brian Pillow, of three counts of selling .5 grams or more of cocaine in a drug-free zone.  The trial court imposed a total effective sentence of twelve years in the Tennessee Department of Correction.  On appeal, the Appellant contends that the trial court erred by requiring the Appellant to expose his tattooed arms to the jury and by admitting photographs of his tattoos into evidence.  Additionally, the Appellant challenges the sufficiency of the evidence sustaining his convictions.  Upon review, we affirm the judgments of the trial court.

In 1994, a Henry County jury convicted the Petitioner, Teresa Deion Smith Harris, of first degree felony murder, and she was sentenced to life in prison without the possibility of parole. The Petitioner appealed, and this Court affirmed the Petitioner's conviction and sentence. State v. Teresa Deion Smith Harris, No W2012-00540-CCA-R3-CD, 1996 WL 654335, at *1 (Tenn. Crim. App., at Jackson, Nov. 12, 1996), perm. app. granted (Tenn. June 8, 1998). The Tennessee Supreme Court affirmed the Petitioner's conviction and sentence but found that there existed some harmless error in sentencing. State v. Harris, 989 S.W.2d 301, 316 (Tenn. 1999). The Petitioner filed a petition for post-conviction relief and two previous petitions for writ of error coram nobis. All of these petitions were denied, the Petitioner appealed, and this Court affirmed their denial. In this, her third, petition for writ of error coram nobis, the Petitioner alleged that she had received newly discovered evidence in the form of an affidavit from a doctor who said that her attorney was cavalier about the charges the Petitioner faced and seemed to not want to talk to the doctor about the Petitioner's case. The coram nobis court summarily dismissed the petition, finding it was filed outside the statute of limitations and that the evidence presented by the Petitioner was not newly discovered and was available to her before her 1994 trial. On appeal, the Petitioner, proceeding pro se, contends that the coram nobis court erred when it dismissed her petition without conducting an evidentiary hearing. After a thorough review, we affirm the coram nobis court's judgment.

Christopher Hammack (“the Defendant”) was indicted for one count of initiation of the process to manufacture methamphetamine (Count 1), one count of possession of a firearm during the commission of or attempt to commit a dangerous felony (Count 2), and one count of convicted felon in possession of a firearm (Count 3).  The Defendant was convicted by a jury of the lesser included offense of facilitation of initiation of the process to manufacture methamphetamine in Count 1 and as charged in Count 2.  A judgment of conviction was entered by the trial court in Count 3.  On appeal, the Defendant challenges the sufficiency of the evidence underlying his convictions in Counts 1 and 2.  Upon review, we conclude that there was insufficient evidence to support the Defendant’s convictions for Counts 1 and 2.  Additionally, we conclude that the Defendant did not effectively waive his right to a jury trial or enter a plea of guilty in Count 3.  The judgments of the trial court are reversed and the charges are dismissed.

Eddie Williams, Jr., the Defendant, appeals the summary denial of his Tennessee Rule of Criminal Procedure 36.1 motion to correct an illegal sentence. He claims that the trial court improperly used his prior petit larceny conviction to enhance his sentence. Because this claim has previously been rejected by this court on multiple occasions and because the Defendant’s motion failed to state a colorable claim, we affirm the trial court’s summary denial of the motion.

In 2000, the Petitioner, Charles R. Blackstock, pleaded guilty to one count of especially aggravated kidnapping and two counts of rape of a child, and the trial court sentenced him to three consecutive twenty-five year sentences. This Court affirmed the consecutive sentencing on appeal, but modified the total effective sentence to seventy-one years. State v. Charles R. Blackstock, No. E2000-01546-R3-CD, 2001 WL 969036, at *1 (Tenn. Crim. App., at Knoxville, Aug. 27, 2001), no Tenn. R. App. P. 11 application filed. In 2013, the Petitioner filed a petition for habeas corpus relief, which was denied. The Petitioner appealed, and this Court affirmed. Charles R. Blackstock v. State, No. E2013-01173-CCA-R3-HC, 2014 WL 1092812, at *1 (Tenn. Crim. App., at Knoxville, Mar. 19, 2014), no Tenn. R. App. P. 11 application filed. In 2015, the Petitioner filed a petition for post-conviction relief alleging that he had received the ineffective assistance of counsel at the guilty plea hearing and also during the habeas corpus proceeding. The post-conviction court summarily dismissed the petition. On appeal, the Petitioner maintains that his counsel during the habeas corpus proceeding was ineffective. He further contends that the post-conviction court erred when it did not “mention[] the claim of ineffective assistance of counsel.” After a thorough review, we affirm the post-conviction court's judgment.

The Defendant, Mitchell Lee Davis, pleaded guilty to burglary, misdemeanor theft, and sale of a Schedule II controlled substance, and the trial court entered the agreed sentence of five years, 180 days of which were to be served in confinement and the remainder to be served on probation. The Defendant's probation officer subsequently filed an affidavit alleging a probation violation. The trial court issued a warrant, and the parties agreed that the Defendant should serve 120 more days followed by reinstatement to probation. The trial court rejected the agreement, revoked the Defendant's probation, and ordered him to confinement. The Defendant did not appeal but then filed a motion to reduce his sentence pursuant to Tennessee Rule of Criminal Procedure 35, contending that the trial court improperly considered his lengthy criminal history when it revoked his probation. The trial court denied the Defendant's motion. On appeal, the Defendant contends that, after the trial court rejected the parties' agreement for the probation violation, the trial court violated his due process rights by not holding a hearing to determine whether there was sufficient evidence to support the probation violation. He further contends that the trial court abused its discretion when it revoked his probation because it based its decision on the Defendant's previous criminal history. After review, we affirm the trial court's judgment.

A Madison County jury convicted the Petitioner, Jerry Crawford, Jr., of aggravated robbery, and the trial court sentenced him to thirty years in prison. The Petitioner appealed his conviction and sentence, and this Court affirmed the trial court's judgments. See State v. Jerry Crawford, Jr., No. W2012-02729-CCA-R3-CD, 2014 WL 296014, at *1 (Tenn. Crim. App., at Knoxville, Jan. 28, 2014), no Tenn. R. App. P. 11 application filed. In 2015, the Petitioner filed a pro se petition for post-conviction relief. The post-conviction court appointed counsel who filed an amended petition for post-conviction relief alleging that the Petitioner had received the ineffective assistance of counsel. The trial court held a hearing on the petition and denied relief. On appeal, the Petitioner contends that the trial court erred when it denied his petition. After a thorough review of the record and applicable authorities, we affirm the post-conviction court's judgment.

The Petitioner, Loice E. Pittman, appeals as of right from the Coffee County Circuit Court’s summary dismissal of his petition for post-conviction relief.  The Petitioner contends that the post-conviction court erred by summarily dismissing his petition for having been untimely filed.  Discerning no error, we affirm the judgment of the post-conviction court.

The Appellant, Marcus Zeron Jones, is appealing the trial court’s denial of his motion to correct an illegal sentence filed pursuant to Rule of Criminal Procedure Rule 36.1  The State has filed a motion asking this Court to affirm pursuant to Court of Criminal Appeals Rule 20.  Said motion is hereby granted.

This is a termination of parental rights case, focusing on the four minor children—Joseph F., Johnathon S., Sarah S., and Larry S. (“the Children”)—of the respondent mother, Elizabeth F. (“Mother”). In January 2011, Mother voluntarily placed all four Children in the custody of Ernest S., the biological father of the younger three children. Ernest S. passed away on June 27, 2011, while Mother was living in Oregon. Upon motion of Ernest S.'s minister and family friend, Betty Shirley, the Grainger County Juvenile Court granted temporary custody of the Children to Ms. Shirley on June 28, 2011. Ms. Shirley gave physical custody of the Children to the petitioners on July 8, 2011. The petitioners filed a petition to terminate the parental rights of Mother and to adopt the Children on that same day. Following a bench trial, the trial court found that statutory grounds existed to terminate the parental rights of Mother upon its finding by clear and convincing evidence that Mother (1) had abandoned the Children by willfully failing to provide financial support, (2) was guilty of severe abuse, and (3) was mentally incompetent to care for the Children. The court further found by clear and convincing evidence that termination of Mother's parental rights was in the Children's best interest. Mother has appealed. We affirm the trial court's judgment terminating Mother's parental rights in all respects.

Pro se petitioner, Harold McDuffie, appeals from the Shelby County Criminal Court’s summary dismissal of his motion to correct an illegal sentence pursuant to Tennessee Rule of Criminal Procedure 36.1. Upon review, we affirm the judgment of the trial court pursuant to Rule 20 of the Rules of the Court of Criminal Appeals.

The Petitioner, William Thomas Mayers, filed a petition for post-conviction relief in the Davidson County Criminal Court, alleging that his counsel was ineffective at trial and on appeal.  The post-conviction court denied the petition, and the Petitioner appeals.  Upon review, we affirm the judgment of the post-conviction court.

This appeal involves the foreclosure sale of improved real property located in Erwin, Tennessee. The plaintiff lender filed a complaint seeking a foreclosure deficiency award in the amount of $53,489.59, plus interest and reasonable attorney's fees, pursuant to the promissory note. The defendant debtor asserted as an affirmative defense that the lender had purchased the property during a foreclosure sale for a sum materially less than the fair market value. Following a bench trial, the trial court found that the fair market value of the property was $158,900.00, an amount the lender had purportedly been offered by an employment relocation company prior to the foreclosure sale. The lender had purchased the home at foreclosure for $95,000.00. Finding the foreclosure sale price to be materially less than the fair market value, the trial court ruled that the debtor had successfully overcome the statutory presumption, pursuant to Tennessee Code Annotated § 35-5-118, that a foreclosure sale price is equal to fair market value. The court entered a deficiency judgment in favor of the lender in the amount of $9,659.62. The lender appeals. Discerning no reversible error concerning the award, we affirm. However, having determined that the promissory note provided for reasonable attorney's fees to the lender in the event of default, we remand for an evidentiary hearing on the amount of reasonable attorney's fees to be awarded for work performed during trial.

The Defendant, Thomas Neal McClean, was convicted upon his guilty pleas to robbery, a Class C felony; burglary, a Class E felony; and theft of property valued at $500 or less, a Class A misdemeanor. See T.C.A. §§ 39-13-401 (2014) (robbery), 39-14-402 (2014) (burglary), 39-14-103 (2014) (theft), 39-14-105(a)(1) (2014) (grading of theft). He received an effective ten-year sentence as a Range III, persistent offender. In this appeal, he contends he received the ineffective assistance of counsel. Because his appeal is not upon any basis permitted by Tennessee Rule of Appellate Procedure 3(b), we dismiss the appeal.

The Defendant, Grady Joe Careathers, pleaded guilty to aggravated assault in exchange for a probation sentence. Shortly thereafter, the Defendant was arrested for violating the Habitual Motor Vehicle Offender Act, a charge to which he pleaded guilty. At the same time, he entered a guilty plea to violating his probation. Over the next five years, the Defendant admitted to violating his probation sentence on several occasions. At his fifth revocation hearing, the trial court revoked his probation and ordered him to serve the remainder of his sentence in confinement. On appeal, the Defendant contends that the trial court erred by ordering him to serve his sentence in confinement. After review, we affirm the trial court's judgments.

In this post-divorce appeal, Father asserts the trial court erred in failing to find a material change of circumstance had occurred such that he should be designated the child’s primary residential parent. Father also asserts the trial court erred in awarding Mother her attorney’s fees. We affirm the trial court in all respects.   

In December 2012, the Maury County Grand Jury indicted Brandon Waire (“the Defendant”) on three counts of sale of cocaine over .5 gram within a drug-free zone.  Following a trial, a jury convicted the Defendant as charged, and the trial court sentenced the Defendant to an effective eight years’ incarceration.  On appeal, the Defendant asserts that he is entitled to relief from his convictions because:  (1) the trial court erroneously denied the Defendant’s motion for mistrial after the State’s confidential informant testified that he had served prison time with the Defendant; (2) the Defendant’s right to a fair trial was violated when the State failed to preserve video evidence of statements made by the confidential informant in violation of State v. Ferguson, 2 S.W.3d 912 (Tenn. 1999); (3) the trial court erred when it failed to exclude the State’s late-disclosed witness from testifying; and (4) the evidence was insufficient to support his convictions.  Upon review, we affirm the judgments of the trial court.