APPELLATE COURT OPINIONS

Appellant, David Orlando Avinger, was indicted by a Davidson County grand jury for first degree premeditated murder, first degree felony murder, and especially aggravated robbery.  After a jury trial, Appellant was convicted of the lesser included offense of second degree murder, as well as the charged offenses of felony murder and especially aggravated robbery.  The trial court merged the convictions for second degree murder and felony murder, and Appellant was sentenced to an effective life sentence.  On appeal, Appellant challenges the sufficiency of the convicting evidence and alleges that the trial court impermissibly limited defense counsel’s cross-examination of a witness.  After reviewing the record, we find that the evidence was sufficient to convict Appellant and that there was no error in the ruling of the trial court related to the limitation of the witness’s testimony.  Accordingly, we affirm the judgments of the trial court.

The Petitioner, Annette Tran Hamby, appeals the Bradley County Criminal Court’s denial of her petition for post-conviction relief from her 2008 conviction for first degree murder and resulting life sentence. The Petitioner contends that the post-conviction court erred by denying her relief because she received the ineffective assistance of counsel. Specifically, she alleges that trial counsel was ineffective for failing to request an independent mental evaluation to rebut the evaluation presented by the prosecution at trial. After considering the record and the applicable authorities, we affirm the judgment of the post-conviction court.

Edwin Dennison, Kaye Dennison, Joel Campbell, and Christine Campbell (“Plaintiffs”) sued attorney Glenna Overton (“Defendant”) for legal malpractice. Defendant filed a motion for summary judgment alleging that Plaintiffs’ claim was barred by the statute of limitations and that Defendant’s actions were not the proximate cause of any loss to Plaintiffs. After a hearing, the Circuit Court for Blount County (“the Trial Court”) granted Defendant summary judgment after finding and holding, inter alia, that Plaintiffs had notice of the alleged negligence and the fact that Plaintiffs had suffered an injury by August of 2009 and, therefore, the suit filed on September 21, 2010 was barred by the applicable one year statute of limitations. Plaintiffs appeal to this Court raising issues regarding whether the Trial Court erred in finding their suit barred by the statute of limitations and whether the Trial Court erred in finding that Plaintiffs could not prove that Defendant’s actions were the proximate cause of any loss to Plaintiffs. We find and hold, as did the Trial Court, that Plaintiffs were on notice of the alleged negligence and loss in August of 2009 and that their suit, therefore, was barred by the statute of limitations. We affirm the Trial Court’s judgment.

After recovering from a work-related injury, the employee returned to work for his pre-injury employer but resigned after only a few days. Later, he made a claim for workers’ compensation benefits. At the conclusion of the proof, the trial court ruled that the employee was deprived of a meaningful return to work and awarded benefits in excess of one and one-half times his physical medical impairment rating. The employer has appealed, asserting that the trial court erred by so finding and that the one and one-half times cap should apply. 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 of the trial court.

The Petitioner, Anthony Brown, appeals the Shelby County Criminal Court’s denial of postconviction relief from his convictions for possession with intent to deliver cocaine and possession of marijuana and resulting twenty-year sentence. He contends that he received the ineffective assistance of counsel at trial, specifically, that trial counsel failed (1) to crossexamine the State’s witnesses regarding trial testimony that was inconsistent with that given at the preliminary hearing and (2) to question witnesses about drug paraphernalia found at the scene, in keeping with his defense strategy. After considering the record and the relevant authorities, we affirm the judgment of the post-conviction court.

Applicant filed a petition for writ of certiorari against Decatur County challenging the denial of his beer permit application. The trial court reversed the decision of the local beer board on the basis that the sale of beer was allowed due to Decatur County’s status as a Tennessee River resort district. Because we conclude that Decatur County’s ordinance restricting the sale of beer within two thousand feet of a church remains in effect despite Decatur County’s status as a Tennessee River resort district, we reverse the decision of the trial court. Reversed and remanded.

Appellant, Brian Gauldin, was indicted by the Dyer County Grand Jury for two counts of the sale of .5 grams or less of cocaine in a drug free zone, one count of the sale of a schedule III controlled substance in a drug free zone, and one count of the sale of .5 grams of more of cocaine in a drug free zone. Prior to trial, the State chose to nolle prosequi one count of the sale of .5 grams or less of cocaine in a drug free zone and one count of the sale of a schedule III controlled substance in a drug free zone. After a jury trial, Appellant was found guilty of one count of the sale of .5 grams or more of cocaine in a drug free zone and one count of the sale of .5 grams or less of cocaine in a drug free zone. Appellant was sentenced to an effective sentence of twenty years as a Range IV, Persistent Offender. Appellant appeals, arguing that the evidence was insufficient to support the convictions. After a review of the record and applicable authorities, we determine that the evidence was sufficient to support the convictions. Consequently, the judgments of the trial court are affirmed.

The Petitioner, Christopher Fielder, appeals from the Shelby County Criminal Court’s denial of post-conviction relief, contending that he received the ineffective assistance of counsel at trial. Specifically, the Petitioner alleges that trial counsel failed to request a jury instruction on merger of the offenses, tasking it with determining whether the kidnapping of the victim was beyond that necessary to complete the especially aggravated robbery. After considering the record and the applicable authorities, we affirm the judgment of the postconviction court.

A Davidson County Criminal Court Jury convicted the appellant, Ladarron S. Gaines, of evading arrest while operating a motor vehicle in which the flight or attempt to elude created a risk of death or injury to innocent bystanders or other third parties, a Class D felony.  After a sentencing hearing, the trial court sentenced him as a Range II, multiple offender to eight years in confinement.  On appeal, the appellant contends that the evidence is insufficient to support the conviction, that the trial court erred by denying his motion to exclude testimony regarding a surveillance video, and that his sentence is excessive.  Based upon the record and the parties’ briefs, we affirm the judgment of the trial court.

Former police officer at Tennessee State University filed suit against the university, the Tennessee Board of Regents, and the chief of the university police department under the Tennessee Human Rights Act,the Tennessee Public Protection Act,and Title VIIof the Civil Rights Act of 1964. The trial court granted the defendants’ motion for summary judgment and former officer appeals. We vacate the order granting summary judgment and remand the case for further proceedings.

This appeal arises from a petition for judicial review of the Tennessee Health Services and Development Agency’s decision to deny one and grant the other of two competing applications for a certificate of need to establish a rehabilitation hospital. Discerning no error, we affirm the chancery court’s order upholding the agency’s decision.

Wife appeals the trial court’s division of property and denial of an award of alimony in this divorce action. We affirm.

The Defendant, Jerry Kirkpatrick, was indicted for burglary and theft of property valued at $1,000 or more but less than $10,000, both Class D felonies. See Tenn. Code Ann. §§ 39-14-103, -105, -402. Following a jury trial, the Defendant was acquitted of the burglary charge and convicted of the theft charge. The trial court sentenced the Defendant as a Range II, multiple offender to seven years. The trial court ordered the Defendant’s sentence to run consecutively to his sentence for a prior conviction. In this appeal as of right, the Defendant contends (1) that the evidence was insufficient to sustain his conviction because the testimony of his accomplice was not sufficiently corroborated and (2) that the trial court erred in ordering his sentence to be served consecutively to a prior sentence. Following our review, we affirm the judgment of the trial court.

The defendant was charged with the June 2005 first degree premeditated murder of her mother. The jury convicted her of second degree murder after a trial in which the evidence was entirely circumstantial. The Court of Criminal Appeals affirmed her conviction and sentence, although the judges on the Panel were not unanimous as to the rationale for the decision. We granted the defendant’s application for permission to appeal. We hold that the lead prosecutor’s remark during final closing argument at trial amounted to a constitutionally impermissible comment upon the defendant’s exercise of her state and federal constitutional right to remain silent and not testify. We also hold that the prosecution violated the defendant’s constitutional right to due process by failing to turn over until after trial the third statement a key witness gave to law enforcement officers investigating the murder. The State has failed to establish that these constitutional errors were harmless beyond a reasonable doubt. Therefore, we vacate the defendant’s conviction and sentence and remand for a new trial.

A Robertson County Circuit Court Jury convicted the appellant, Gabriel Torres, of rape of a child, a Class A felony, and the trial court sentenced him to twenty-five years in confinement to be served at 100%.  On appeal, the appellant contends that the evidence is insufficient to support the conviction and that the trial court failed to fulfill its role as the thirteenth juror.  Based upon the record and the parties’ briefs, we affirm the judgment of the trial court.

The petitioner pled guilty to charges of attempted first degree murder, second degree murder, and especially aggravated robbery. Later, he filed a petition for post-conviction relief, claiming that his trial counsel was ineffective and that his guilty pleas were not knowingly and voluntarily made. When the petitioner subpoenaed his three co-defendants to testify at the post-conviction hearing, the State filed a motion to quash because the co-defendants were all incarcerated. The post-conviction court granted the State’s motion. The Court of Criminal Appeals ruled that the post-conviction court had erred, but held that the error was harmless under the circumstances. We hold that the post-conviction court committed prejudicial error by applying an incorrect legal standard and by failing to consider whether the proposed testimony by the co-defendants was material to the petitioner’s claim of ineffective assistance of counsel. Because the record is insufficient for the issue to be resolved on appeal, we remand for the post-conviction court to reconsider the motion to quash under the proper standard. The judgment of the Court of Criminal Appeals is reversed, and the case is remanded to the post-conviction court for additional proceedings consistent with this opinion. Tenn. R. App. P. 11

In 2007, a Sullivan County jury convicted the Petitioner, Tracy Lynn Cope, of especially aggravated kidnapping, aggravated kidnapping, and false imprisonment, and the trial court sentenced him to an effective sentence of forty years. State v. Tracy Lynn Cope, No. E2009-00435-CCA-R3-CD, 2010 WL 2025469 (Tenn. Crim. App., at Knoxville, May 20, 2010), perm. app. denied (Tenn. Sept. 22, 2010). After the Petitioner filed two petitions for post-conviction relief, both of which were denied, he filed a petition for a writ of error coram nobis, which the trial court summarily dismissed. On appeal, the Petitioner contends that the lower court erred when it dismissed his petition. After a thorough review of the record and applicable authorities, we affirm the coram nobis court’s judgment.

This appeal stems from a divorce proceeding and child support modification. On appeal, the appellant husband challenges several decisions made by the trial court after it had entered an order purporting to be the final decree of divorce. Because prior orders reserved issues not addressed in this divorce decree, we find this divorce decree was not a final order, and thus, subject to revision by later orders. Consequently, we find the trial court had jurisdiction and did not abuse its discretion in later revising awards contained in the non-final divorce decree and affirm the later changes in part. Additionally, in a later order purporting to modify the child support award, we find the trial court failed to properly make findings of facts and conclusions of law in compliance with Rule 52.01 of the Tennessee Rules of Civil Procedure and remand in part on this issue.

Petitioner, Billy D. Sizemore, was convicted of theft over $1,000 and sentenced to twelve years as a career offender.  Petitioner filed the instant petition for post-conviction relief, in which he alleged that he received ineffective assistance of counsel.  Following an evidentiary hearing, the post-conviction court denied relief.  On appeal, petitioner argues that he received ineffective assistance of counsel when trial counsel: (1) failed to challenge the value of the stolen goods and (2) failed to seek a continuance after the State filed a late notice of intent to seek enhanced punishment.  After our review of the parties’ briefs, the record, and the applicable law, we affirm the judgment of the post-conviction court.

Shirley M. Cartwright (“Plaintiff”) sued Tennessee Farmers Mutual Insurance Company (“Defendant”) alleging breach of a contract of insurance. Defendant filed a motion for summary judgment. After a hearing, the Circuit Court for Maury County (“the Trial Court”) entered an order finding and holding, inter alia, that Plaintiff’s response to Defendant’s motion was untimely and would not be considered and that Defendant was entitled to summary judgment. Plaintiff appeals raising issues regarding whether the Trial Court erred in finding her response untimely, whether the Trial Court erred in granting Defendant summary judgment, and whether the Trial Court erred in denying two other motions filed by Plaintiff. We find and hold that Plaintiff’s response to Defendant’s motion for summary judgment was filed timely. We, therefore, reverse the Trial Court’s decision finding Plaintiff’s response untimely and refusing to consider it. As it was error to refuse to consider Plaintiff’s response to Defendant’s motion for summary judgment, we vacate the grant of summary judgment to Defendant and the Trial Court’s denial of Plaintiff’s motions and remand this case to the Trial Court for further proceedings consistent with this Opinion.

In this non-jury case, builders of a home appeal the dismissal of their breach of contract claim against the prospective buyers, the court’s determination that the builders breached the construction and sale agreement, and the order awarding the earnest money deposit to the buyers. Finding no error, we affirm the trial court’s judgment.

Following a remand from this court, the petitioner, William L. Vaughn, acting pro se, was permitted a second evidentiary hearing on certain ineffective assistance of counsel claims which he had not presented in the first hearing on his petition for post-conviction relief.  As we will set out, he filed massive pleadings, complaining of a multitude of wrongs visited upon him, from the moment of his arrest through his direct appeal.  The evidentiary hearing was lengthy and free-swinging, with the post-conviction court’s concluding that the petitioner’s claims were “incredible” and, ultimately, without merit.  We agree.  Doggedness cannot substitute for substance.  The post-conviction court’s denial of relief is affirmed.

A Robertson County Grand Jury indicted appellee for possession of over 0.5 grams of cocaine with the intent to sell.  The charges were dismissed after the trial court granted appellee’s motion to suppress evidence.  The State appeals the trial court’s granting of the motion to suppress and argues that appellee’s arrest and search were proper.  Following a thorough review of the record, we reverse the ruling of the trial court, reinstate the indictment, and remand for further proceedings consistent with this opinion.

Pursuant to Tennessee Supreme Court Rule 51, this workers’ compensation 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.  Employee filed a request for reconsideration pursuant to Tenn. Code Ann. § 50-6-241(d)(1)(B), which Employer opposed on the ground that Employee’s loss of employment was due to Employee’s voluntary resignation and/or his employment-related misconduct.  The trial court ruled that Employer failed to carry its burden of proof as to either of the asserted grounds for denying reconsideration.  The trial court therefore granted Employee’s request for reconsideration and awarded increased benefits.  Based on our review of the entire record, we reverse the trial court’s judgment.
 

An employee alleged he injured his back on two occasions during late 2008.  His employer initially accepted the second claim as compensable, but then denied the claim after receiving records from the employee’s primary care physician. The Department of Labor and Workforce Development denied the employee’s Request for Assistance. This civil action was subsequently filed in the Chancery Court for Montgomery County. That court awarded workers’ compensation benefits to the employee. The employer has appealed, contending that the evidence preponderates against the trial court’s findings concerning causation and permanency. 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 in accordance with Tennessee Supreme Court Rule 51. We affirm the judgment of the trial court.