APPELLATE COURT OPINIONS

For his involvement in the January 2007 murders of the victims C.N. and C.C.,1 appellant, Letalvis Darnell Cobbins, was found guilty of multiple counts of first degree murder, facilitation of first degree murder, especially aggravated robbery, especially aggravated kidnapping, facilitation of especially aggravated kidnapping, and aggravated rape, for which he received an effective sentence of life in prison without the possibility of parole plus one hundred years. He appeals his convictions and sentences on the following grounds: (1) whether misconduct of the trial judge constituted structural constitutional error; (2) whether the trial court erred in denying appellant’s motion for change of venue; (3) whether the trial court erred in admitting certain photographs; (4) whether the trial court erred in denying appellant’s motion to continue; (5) whether the trial court erred in allowing testimony concerning a firearm that appellant had possessed prior to the offense date; (6) whether the trial court erred in allowing family members to wear buttons with the victims’ likenesses; and (7) whether the trial court erred in imposing an effective sentence of one hundred years to be served consecutively to his sentence of life in prison without the possibility of parole. We have thoroughly reviewed the record in this case and discern no error. Accordingly, we affirm the judgments of the trial court.

Because the order appealed is not a final judgment, we dismiss this appeal for lack of jurisdiction.

Because the order appealed is not a final judgment, we dismiss this appeal for lack of jurisdiction.

Because the order appealed is not a final judgment, we dismiss this appeal for lack of jurisdiction.

Plaintiff is an inmate in the Tennessee prison system serving a life sentence with the possibility of parole for first degree murder. The Tennessee Board of Parole declined to recommend the inmate for parole, citing as its reason the seriousness of his offense. The inmate filed a common law writ of certiorari in Davidson County Chancery Court challenging the Board’s decision to deny him parole. The chancery court dismissed the petition for failure to state a claim upon which relief can be granted. We affirm.

This is an appeal from the Tennessee Claims Commission’s dismissal of Appellant’s claim against the Madison County Circuit Court for alleged sentencing errors made in Appellant’s criminal case. The Commission dismissed the claim on the ground of judicial immunity. Appellant appeals. Because the Appellant failed to timely file his notice of appeal, this Court does not have subject matter jurisdiction over this appeal. Accordingly, we dismiss.

The trial court granted a directed verdict pursuant to Tenn. R. Civ. P. 50.01 in favor of the defendant in a premises liability action. The court found the defendant did not have constructive notice of the defective condition stating, “the plaintiff has not met the burden of proof of more likely than not that this unsafe condition existed for a period of time in order to be corrected or warned about[.]” The plaintiff, who sustained a broken femur when the automatic sliding glass door at the front of the grocery store closed on her, presented an expert witness who testified that “the immediate cause of the accident was the failure of the presence sensing capability” of the automatic door. The expert testified that had the defendant conducted daily safety checks of the sensors in the proper manner, the defendant would have known that they were not functioning properly, and the likelihood the sensors first failed on the day of the incident “was extremely small.” Whether the defendant conducted daily safety checks in the appropriate manner was disputed. Taking the strongest legitimate view of the evidence and allowing all reasonable inferences in favor of the plaintiff while discarding all evidence to the contrary as Rule 50.01 requires, we have concluded the evidence is sufficient to create an issue for the jury to decide whether the defendant had constructive notice in time to remedy or warn customers of the defective condition of the door. We, therefore, reverse and remand for further proceedings.

The Disciplinary Board of the Turney Center Industrial Complex convicted Petitioner of assault based upon his involvement in a gang stabbing of another inmate, the conviction was affirmed by the Commissioner of the Department of Correction. Petitioner then filed this common law writ of certiorari with the Chancery Court of Hickman County to challenge his conviction. The trial court granted the writ and the administrative record was filed with the trial court. Thereafter, on motion of the respondents, the trial court denied relief to Petitioner on the grounds that the record demonstrated that the disciplinary board had not acted illegally,arbitrarily,or exceeded its jurisdiction,and that Petitioner’s due process rights were not violated. Finding no error, we affirmed. Petitioner then filed a Tenn. R. App. P. 11 application to the Supreme Court, which granted the application and remanded to this court with instructions to address the issue of whether the trial court“ improperly dismissed the writ of certiorari without first disposing of [Petitioner’s] pretrial motions.” After requesting supplemental briefs on the issue, we have concluded that the trial court erred in dismissing the writ of certiorari without first disposing of Petitioner’s motions. We reach this decision because we are unable to conclude that the outcome of the petition could not have been affected had the trial court granted some or all of the motions. Accordingly, we reverse the judgment of the trial court and remand this matter for further proceedings.

JAMES CURWOOD WITT, JR., J., concurring. I write separately in concurring with the majority because some aspects of the case are worth explaining futher. In assessing whether the petitioner has framed a case for a due process tolling of the coram nobis statute of limitations, we see that the petition, even as amended by counsel, does not specify when and by what means the petitioner discovered the claim of affiant John D. Carter that, during the investigation of the homicide, Mr. Carter gave a statement to police that would have supported a claim of self-defense. Thus, the state of the record does not enable this court to discern whether the application of the statute of limitations afforded the petitioner a “‘reasonable opportunity to assert a claim in a meaningful time and manner,’” Workman v. State, 41 S.W.3d 100, 102 (Tenn. 2001) (quoting Seals v. State, 23 S.W.3d 272, 279 (Tenn. 2000)), or if it did not, whether the petitioner’s “‘reasonable opportunity after the expiration of the limitations period to present his claim in a meaningful time and manner’” expired before he filed the petition, Workman, 41 S.W.3d at 103-04 (quoting Williams v. State, 44 S.W.3d 464 (Tenn. 2001)). In other words, we cannot tell, despite the petitioner’s conclusory allegations, whether the delay of approximately five years in filing a timely petition for writ of error coram nobis is essentially reasonable.

In 2006, the Petitioner, Thomas Edward Kotewa, pleaded guilty to second-degree murder. See Thomas E. Kotewa v. State, No. E2007-02193-CCA-R3-PC, 2009 WL 1635177, at *1 (Tenn. Crim. App., at Knoxville, June 11, 2009), perm. app. denied (Tenn. Oct. 19, 2009). For this conviction, the trial court sentenced the Petitioner to serve an agreed-upon sentence of fifteen years. In February 2012, the Petitioner filed a petition for a writ of error coram nobis alleging that he had discovered new evidence. The State filed a response to the petition requesting the trial court dismiss the petition on the basis that, among other things, it was untimely filed. The trial court agreed, and it dismissed the petition, finding that the petition was untimely filed. On appeal, the Petitioner asserts that the trial court erred when it dismissed his petition. After a thorough review of the record and applicable law, we affirm the trial court’s judgment.

Father of Child filed a petition seeking parenting time with Child when she was four years old. Mother sought retroactive child support from Father dating back to Child’s birth. The trial court entered an order stating that the child support arrearage would be measured from the date Father filed his petition. The permanent parenting plan order that was entered the same day, however, was inconsistent and indicated that the arrearage would be measured from the date of Child’s birth. Father appealed, arguing that the order measuring the child support arrearage from the date of the petition should control. The record contains no transcript or statement of the evidence, and we cannot determine which order contains the correct date. We vacate the portion of the trial court’s judgments relating to Father’s child support arrearage and remand the case back to the trial court for further proceedings. Should the court determine the child support arrearage should date back to the filing of the petition rather than to Child’s birth, the court will have an opportunity to make findings supporting such a deviation from the child support guidelines, as required by the applicable statutes and guidelines.

Defendant, Heather Lee Lane, pleaded guilty to violation of a habitual traffic offender order, a Class E felony, with an agreed upon sentence of two years as a Range II multiple offender with the trial court to determine manner of service of the sentence. The trial court ordered Defendant to serve her two-year sentence in confinement. On appeal, Defendant contends the trial court erred by denying her alternative sentencing. We conclude the trial court did not abuse its discretion in sentencing Defendant. Accordingly, we affirm the judgment of the trial court.

Appellant was convicted of rape, a Class B felony, and sentenced to nine years in confinement. On appeal, appellant argues (1) that the trial court erred by failing to grant his motion to suppress because there was an unreasonable delay in the judicial determination of probable cause; (2) that the trial erred by failing to grant his motion to suppress because his statements to police were involuntary; and (3) that there was insufficient evidence to support his conviction. Following our review of the parties’ briefs, the record, and the applicable law, we affirm the judgment of the trial court.

Joseph J. Levitt, Jr. (“Plaintiff”) appeals the dismissal of his suit against the City of Oak Ridge, Oak Ridge Board of Building and Housing Appeals, and Denny Boss (“Defendants”) entered by the Chancery Court for Anderson County (“the Trial Court”). We find and hold, as did the Trial Court, that Plaintiff’s suit is barred by res judicata, and we affirm. We further find and hold Plaintiff’s appeal to be frivolous and remand to the Trial Court for an award of damages for frivolous appeal.

This appeal involves the standard that appellate courts should use to review a trial court’s decision regarding the credibility of a witness who testifies by telephone.  A mother of two children filed for divorce in the Circuit Court for Hamilton County. When the suit was filed, the parties’ daughter was living with her mother, and the parties’ son was living in Middle Tennessee with his father. Both parents sought custody of their son. When the case was tried, the mother’s first witness testified by telephone without objection from the father. The trial court designated the mother as the primary residential parent for both children, and the father appealed. The Court of Appeals declined to defer to the trial court’s decision to accredit the testimony of the witness who testified by telephone, and a majority of the panel then reversed the trial court’s custodyruling. Kellyv.Kelly,No.E2012-02219-COA-R3-CV, 2013 WL 4007832 (Tenn. Ct. App. Aug. 6, 2013). We find that the testimony of a witness who testified by telephone should be reviewed using the same deferential standard as a live witness. Accordingly, we reinstate the trial court’s custody decision.

The Petitioner, Jack T. Jones, appeals from the summary dismissal of his “Motion to Reopen Post-Conviction Petition,” seeking relief from his four 2007 convictions for aggravated sexual battery.  In his pleading, the Petitioner argued that the Sentencing Reform Act of 1989 is unconstitutional in violation of the separation of powers doctrine and, therefore, the trial court lacked jurisdiction to accept his guilty pleas and impose sentence.  The post-conviction court treated the pleading as a petition for post-conviction relief and dismissed it as untimely. On appeal, the Petitioner contends that the statute of limitations should be tolled because trial counsel  “should have known that the 1989 [A]ct was declared unconstitutional” and, thus, he provided ineffective assistance.  Following our review, we affirm the judgment of the post-conviction court.

In the first appeal in this divorce action, the case was remanded for the trial court to adopt a parenting plan that increased Mother’s parenting time and to adjust her child support obligation accordingly. Mother appeals the order entered on remand,contending that the trial court failed to give her meaningful parenting time as directed and by imputing income to her based on a finding that she is voluntarily underemployed. Finding no error, we affirm the trial court’s judgment.

Stanley Dennis Waters (“the plaintiff”), a detective with the Polk 2 County Sheriff’s Department, was seriously injured when the Polk County vehicle in which he was riding as a passenger was struck in the rear by a vehicle owned by one of the two named defendants and driven by the other named defendant (collectively “the Named Defendants”). The plaintiff’s vehicle was being driven by the Sheriff of Polk County. The plaintiff and his wife sued the Named Defendants. Process and a copy of the complaint were served3 upon two unnamed parties, Tennessee Risk Management Trust (“TRMT”) and Markel Corporation4 (collectively “the Unnamed Parties”). The suit against the Named Defendants was settled for the full amount of the liability limits of their respective casualty insurance policies. The plaintiffs seek to recover uninsured5 motorist benefits from the Unnamed Parties. The plaintiffs and the Unnamed Parties filed motions for summary judgment. The trial court granted the motion of the Unnamed Parties and denied the plaintiffs’ motion. The plaintiffs appeal. We affirm.

This appeal involves property that the plaintiff alleged was transferred by a deed with a forged signature. The plaintiff filed an action to have the deed, filed over a decade earlier, set aside. The defendants contended that the signature on the deed was an authorized assisted signature, and was recorded and published within a few days after it was made. The defendants further asserted that they had no obligation to announce to anyone they had obtained the property. The trial court found the plaintiff failed to carry the burden of proof necessary to void the deed. The plaintiff appeals. We affirm.

A Hamilton County jury found the Defendant, Allen Lebron Tucker, guilty of possession with intent to sell one-half gram or more of cocaine. The trial court ordered the Defendant to serve a fifteen-year sentence for this conviction. On appeal, the Defendant contends that the trial court erred when it denied his motion to suppress the evidence obtained during the execution of a search warrant and when it excluded evidence of his girlfriend’s prior drug conviction. After a thorough review of the record and relevant law, we affirm the judgment of the trial court.

The dispute in this case arises from a contract for recycling services entered into by the City of Memphis and a recycling vendor. A competing recycling vendor and a citizen and taxpayer of the City of Memphis filed a complaint for declaratory judgment seeking to void the contract, on the ground that the contract was subject to the City of Memphis’s competitive bidding procedure. The trial court determined that, because the City of Memphis did not expend any monies in connection with its recycling contract, the contract was not subject to competitive bidding. The trial court granted summary judgment to the City of Memphis and its recycling vendor and this appeal followed. Discerning no error, we affirm and remand.

The Defendant, Tan Vo, was convicted by a Shelby County Criminal Court jury of sexual battery and incest. The trial court imposed concurrent sentences of two years and six years for the sexual battery and incest convictions, respectively, to be served in the county workhouse. The sole issue presented for our review is whether the trial court abused its discretion in denying the Defendant’s request for probation and imposing an effective sentence of six years to be served in the county workhouse. Upon review, we affirm the judgment of the trial court.

Appellant, Frederic A. Crosby, stands convicted of possession of 0.5 grams or more of cocaine with the intent to deliver, a Class B felony, and simple possession of marijuana, a Class A misdemeanor. The trial court sentenced appellant to twelve years for his cocaine conviction and eleven months, twenty-nine days for his marijuana conviction, to be served concurrently. On appeal, appellant argues that: (1) the trial court erred by failing to grant his motion to suppress because the arresting officer did not have probable cause to search him; (2) that the evidence was insufficient to support his conviction for possession of 0.5 grams or more of cocaine with the intent to deliver; and (3) that the trial court erred by imposing the maximum sentence within appellant’s sentencing range for his conviction for possession of 0.5 grams or more of cocaine with the intent to deliver. Following our review of the briefs, the record, and the applicable law, we affirm the judgments of the trial court.

This is the second appeal in this matter involving applicability of the parties’ agreement, embodied in their 1997 final decree of divorce, regarding issues related to the dissolution of their marriage. In May 2012, the husband sought to terminate his alimony obligation pursuant to said agreement, citing a material change of circumstances affecting his ability to pay. The trial court dismissed the husband’s motion, concluding that the language of the parties’ agreement rendered his alimony obligation non-modifiable. Husband timely appealed. Because we determine the husband’s alimony obligation to be modifiable, we reverse the trial court’s dismissal of the husband’s motion and remand this action to the trial court for a hearing to determine whether a modification of the husband’s alimony obligation is warranted. We vacate the trial court’s taxing of court costs to Husband, and we deny Husband’s request for an award of attorney’s fees on appeal.

The defendant, Gary Brian Berry, appeals his Hickman County Circuit Court guilty-pleaded convictions of manufacturing methamphetamine, possession of methamphetamine with the intent to sell, and four counts of promoting the manufacture of methamphetamine, claiming that the 12-year sentence imposed by the trial court is excessive.  We affirm the judgments of the trial court.