APPELLATE COURT OPINIONS

Charles Nardone (“Plaintiff”) sued Louis A. Cartwright, Jr. and Cartwright Communication Technology, Inc. (“CCT”) alleging, among other things, slander and libel. During trial, defendants moved for a directed verdict, which the Trial Court granted by order entered December 6, 2012. Plaintiff appeals the dismissal of his claim for libel. We find and hold that Plaintiff failed to prove libel, and we affirm.

This action originated with the filing of a detainer warrant in General Sessions Court by the plaintiff, seeking possession of her home. The plaintiff obtained a judgment granting her possession of the home, and the defendant appealed that judgment to Circuit Court. Following a de novo trial, the Circuit Court likewise granted judgment in favor of the plaintiff. The defendant has appealed. Discerning no error, we affirm.

This appeal concerns attorney’s fees. Two relatives (“Petitioners”) filed a petition to terminate the parental rights of the parents (“Respondents”) to Respondents’ three minor children (“the Children”). The Chancery Court for Washington County (“1 the Trial Court”), pursuant to Tennessee Supreme Court Rule 13, appointed counsel to represent Respondents in the parental termination action. After a long, drawn out process, the parties resolved their legal dispute through a mediated agreement. The Children remained with Respondents. Respondents filed a motion for attorney’s fees, arguing that they should be awarded attorney’s fees under Tenn. Code Ann. § 36-5-103(c). The Trial Court held that Tenn. Code Ann. § 36-5-103(c) was inapplicable under these circumstances and denied Respondents’ motion for attorney’s fees. Respondents appeal. We affirm the Trial Court.

The Defendant, Brian Roberson, appeals from his jury conviction for facilitation of first-degree premeditated murder. Specifically, he contends (1) that the evidence presented at trial was insufficient to support his conviction; (2) that the trial court erred in allowing, over the objection of defense counsel, a witness’s preliminary hearing testimony to be admitted as substantive evidence at trial under the former testimony exception to the hearsay rule; and (3) that consecutive sentencing was improperly imposed. After reviewing the record and the applicable authorities, we affirm the judgment of the trial court.

The Defendant, Mario Johnson, was convicted by a jury of two counts of aggravated assault and one count of misdemeanor reckless endangerment. All verdicts were merged into a single conviction for aggravated assault, and the Defendant was sentenced to fifteen years in the Department of Correction. In this direct appeal, the Defendant argues that an instruction on self-defense, which he requested, should have been included in the final charge to the jury. Finding no error, we affirm the judgment of the trial court.

Civil Service Employee filed a grievance with the Civil Service Commission complaining he was not given supervisory responsibilities in accordance with the job description that was posted when he accepted the position. The administrative law judge dismissed Employee’s grievance because it was a “non-grievable matter” as that term is defined in the rules promulgated by the Department of Human Resources, leaving the Civil Service Commission without subject matter jurisdiction. Employee petitioned the Chancery Court for judicial review. The Chancery Court affirmed the administrative law judge’s dismissal of Employee’s grievance. Employee appealed the trial court’s judgment to the Court of Appeals, and we affirm the dismissal of Employee’s petition

This appeal involves the grant of a Rule 60.02 motion to modify a default divorce decree entered nearly eight years prior. The husband filed a Tenn. R. Civ. P. 60.02 motion seeking relief from the parties’ divorce decree; he argued primarily that the provision pertaining to his retirement benefits was inequitable. The trial court initially denied the motion, and the husband filed a timely notice of appeal. Almost two years later, the husband voluntarily dismissed his appeal. The trial court then entered an order setting aside its prior denial of the husband’s Rule 60.02 motion, held an evidentiary hearing on the motion, and eventually entered an order granting the husband’s Rule 60.02 motion. The wife now appeals. We hold that the effect of the dismissal of the earlier appeal was to affirm the trial court’s denial of the husband’s Rule 60.02 motion, so the trial court was precluded under the law of the case doctrine from reconsidering its earlier denial of the Rule 60.02 motion. Consequently, we vacate the trial court’s order setting aside its prior denial of the husband’s Rule 60.02 motion, as well as the order granting the husband the relief requested.

Defendant, Christopher Deon’Dre Jones, was charged in a four-count indictment returned by the Madison County Grand Jury with aggravated burglary, assault, evading arrest, and vandalism. Following a trial, the jury acquitted Defendant of aggravated burglary and assault, but found him guilty as charged of misdemeanor evading arrest and misdemeanor vandalism. The trial court imposed concurrent sentences of 11 months and 29 days of incarceration in the county jail for each conviction. In his sole issue on appeal, Defendant asserts that the evidence was legally insufficient to support his conviction of the offense of evading arrest. Defendant assigns no error to his conviction of vandalism. After a thorough review of the briefs and the record we affirm the judgments of the trial court.

The Petitioner, Akil Jahi a.k.a. Preston Carter, appeals the trial court’s denial of post-conviction relief regarding his convictions for two counts of felony murder and sentences of death. The Petitioner contends that (1) he is intellectually disabled and, ineligible for the death penalty; (2) he received the ineffective assistance of counsel at both his original trial and resentencing hearing; (3) the death penalty is unconstitutional; and (4) the cumulative effect of all errors warrants relief. We affirm the judgment of the trial court.

The Petitioner, Charles Damien Darden, appeals the Robertson County Circuit Court’s denial of his “Petition for Writ of Habeas Corpus in Alternative Petition for Post-Conviction Relief in Alternative Petition[] for Writ of Error Coram Nobis” requesting relief from his 1996 conviction for felony murder and his resulting life sentence. The Petitioner contends that his life sentence violates the Eighth Amendment to the United States Constitution as discussed in Miller v. Alabama, 567 U.S. —, 132 S.Ct. 2455 (2012). We affirm the judgment of the trial court.

I fully concur in the majority’s decision to remand the case to the trial court for it to make findings of fact and conclusions of law that are sufficient to enable this Court to review the matter on appeal. I write separately only to comment on some points that we can glean from the appellate record about the trial court’s reasoning.

In this post-divorce case, Mother/Appellant appeals the trial court’s grant of Father/Appellee’s motion for involuntary dismissal of her petition to be named the primary residential parent of the parties’ child. Implicitly finding that there has not been a material change in circumstances since the entry of the last custodial order, the trial court granted Father’s Tennessee Rule of Civil Procedure 41.02(2) motion to dismiss Mother’s petition. The trial court also denied Father’s request for attorney’s fees under Tennessee Code Annotated Section 36-5-103(c). Because the trial court’s order does not comply with Rule 41.02(2) in that it neither finds the facts specially upon which the court based its determination that there has been no material change in circumstances, nor indicates the court’s reason(s) for denial of Father’s request for attorney’s fees, we are unable to conduct a meaningful review. Vacated and remanded.

The Defendant, Hank Wise, was indicted on one count of premeditated first degree murder for the death of the victim, Benjamin Goeser. See Tenn. Code Ann. § 39-13-202. Following a bench trial, the Defendant was convicted of the lesser-included offense of second degree murder. See Tenn. Code Ann. § 39-13-210. The trial court subsequently sentenced the Defendant to twenty-three years for the offense. In this appeal as of right, the Defendant contends (1) that the trial court erred by failing to find him not guilty by reason of insanity; and (2) that the trial court erred by imposing an excessive sentence. Following our review, we affirm the judgment of the trial court.

A Davidson County jury convicted the Petitioner, Anthony Williams, of first degree premeditated murder, aggravated assault, and felony reckless endangerment. The trial court ordered a total effective sentence of life imprisonment plus six years. The Petitioner appealed, and this Court affirmed the judgments of the trial court. State v. Anthony Williams, No. M2007-01385-CCA-R3-CD, 2009 WL 564231 (Tenn. Crim. App., at Nashville, Mar. 5, 2009) perm. app. denied (Tenn. Aug. 17, 2009). The Petitioner filed a petition for post-conviction relief, which the post-conviction court denied after a hearing. On appeal, the Petitioner contends that the post-conviction court erred when it dismissed his petition because he received the ineffective assistance of counsel. After a thorough review of the record and applicable law, we affirm the post-conviction court’s judgment.

The Defendant, Zachary Ross Hendrixson, pled guilty to theft of property valued over $10,000, and the trial court sentenced him, as a Range II offender, to serve a six-year sentence consecutive to a ten-year sentence he was required to serve in Dekalb County. The trial court suspended the Defendant’s sentence, ordering that the Defendant serve six years on probation after his release from Dekalb County. The trial court held a hearing on restitution, after which it ordered the Defendant to pay $60,000, at a rate of $833.33 per month after he was released from prison. On appeal, the Defendant contends that the trial court abused its discretion when it set the amount of his restitution because the amount is not reasonable. After a thorough review of the record and applicable authorities, we conclude that no error exists. Accordingly, we affirm the trial court’s judgment.

The defendant was convicted of assault and child neglect, both Class A misdemeanors. He was sentenced to two consecutive sentences of eleven months and twenty-nine days. On appeal, the defendant argues that his sentences are excessive and that the trial court erred by denying his request for judicial diversion. After carefully reviewing the record de novo to determine if the trial court’s sentencing decisions can be upheld, we conclude that no reversible error was committed. The judgments of the trial court are affirmed.

I respectfully dissent from the conclusion reached by the majority in this case. In my view, the trial court abused its discretion in denying judicial diversion. The only mention of judicial diversion by the trial court was after the court imposed the sentence in this case. In somewhat of an afterthought, the trial court stated, “I guess, I didn’t state it, but the application for diversion is denied.” Unlike judicial diversion cases in which this court has reversed and remanded due to the trial court’s failure to fully consider, explain or weigh the judicial diversion factors, see e.g., State v. Lewis, 978 S.W .2d 558, 567 (Tenn. Crim. App.1997); State v. Sean Nauss, No. E2011-00002-CCA-R3-CD, 2012 WL 988139 at * 4 (Tenn. Crim. App. Mar 22, 2012) (collecting cases), the trial court here failed even to consider the Defendant for judicial diversion. State v. Cutshaw, 967 S.W.2d 332, (Tenn. Crim. App. 1997) (concluding that “the trial judge abused his discretion by failing even to consider the defendant’s personal eligibility for judicial diversion”). On this meager record, the trial court’s denial of diversion cannot be cloaked with a presumption of reasonableness. Moreover, the record hardly assists this court in determining the appropriateness of the trial court’s denial of diversion as there was no proof other than the presentence report at the sentencing hearing. To uphold the denial of judicial diversion in this case would render consideration of the judicial diversion factors in all future cases a complete nullity. Accordingly, I would reverse the trial court’s denial of judicial diversion and remand the case for a new sentencing hearing.

The defendant, Sarah Rebekah Hodges, appeals from her Washington County Criminal Court guilty-pleaded convictions of eight counts of forgery, one count of theft of property valued at more than $10,000 but less than $60,000, and one count of theft of property valued at more than $1,000 but less than $10,000, claiming that the trial court erred by denying her bid for judicial diversion and by denying full probation. We discern no error in the trial court’s denial of judicial diversion and full probation, but we observe plain error in seven of the defendant’s judgments for forgery. In case number 37513, the trial court attempted to memorialize the defendant’s guilty pleas and the accompanying sentences for all seven counts of forgery contained in the indictment within a single judgment form. Because a separate judgment form is required for each conviction, case number 37513 is remanded to the trial court for entry of a separate judgment form for each conviction of forgery.

This is an appeal from the trial court’s grant of a motion to dismiss. The complaint alleged that the defendant circuit court clerk failed to timely send to the appellate court a case file in a matter other than the case that was on appeal. The defendant court clerk filed a motion to dismiss for failure to state a claim; the trial court granted the motion. The plaintiff appeals. Discerning no error, we affirm.

The Defendant, Bernabe Rodriguez, has appealed the Davidson County Criminal Court’s denial of his motion to sever the counts in his indictment. The Defendant filed a motion to sever, and the trial court denied the motion. The appellate record, however, does not contain a transcript of the hearing on the Defendant’s motion to sever. Our review of the record reveals that this case meets the criteria for affirmance pursuant to Rule 20 of the Rules of the Court of Criminal Appeals. Accordingly, the judgment of the trial court is affirmed.

I respectfully dissent. There appears to be little dispute about the facts of this case. In my opinion, the totality of the circumstances based on these facts demonstrate that the actions of Deputy Reiman were within the bounds of constitutional reasonableness. Unlike the officer in State v. Moats, 403 S.W.3d 170 (Tenn. 2013), Deputy Reiman was careful to pull beside the Defendant’s vehicle in the church parking lot and to not activate his blue lights when he pulled into the church parking lot. As a result, no seizure took place at this point.

The Defendant-Appellee, Mechelle L. Montgomery, was indicted for driving under the influence of an intoxicant and for violation of the open container law. See T.C.A. §§ 55-10-401, -416. She filed a motion to suppress, alleging, inter alia, that she was unreasonably seized and that her arrest lacked probable cause. After a bifurcated hearing on the motion, the trial court took the matter under advisement and requested further briefing from the parties. The trial court subsequently entered a written order granting Montgomery’s motion to suppress. The State appeals, arguing that the trial court erred in concluding that the investigatory detention of Montgomery was unlawful. Upon review, we affirm the judgment of the trial court.

I join with the majority in this case. I write separately, however, to further elaborate on whether the trial judge’s status as a “Facebook friend” with a prospective witness, standing alone, is sufficient to require recusal. Here, Appellant moved for recusal alleging the trial judge was biased based on his affiliation with MTSU, the judge’s alma mater. Specifically, Appellant claimed she was denied a fair and impartial trial due to the trial judge’s Facebook connections with the MTSU women’s basketball team and their coach, a prospective State’s witness. Rather than an actual conflict of interest, Appellant contends that the trial judge’s Facebook connection gave the appearance of impropriety in violation of the Tennessee’s Code of Judicial Conduct.

I respectfully dissent. I would reverse the trial court’s orders granting the suppression motions filed by Defendant Jones and Defendant McClanahan, reverse the orders of dismissal of the cases, and reinstate the charges for further proceedings. Since the search of Defendant McClanahan was a different search than the one challenged by Defendant Jones, I will discuss each Defendant separately. Initially though it is necessary for me to specifically address a portion of Judge McMullen’s lead opinion. The State filed separate Notices of Appeal for Defendant Jones and Defendant McClanahan, so the issue of the trial court’s order suppressing all evidence seized pursuant to execution of the search warrant at Defendant Jones’ home was preserved for appeal. I acknowledge that the State, for reasons I do not know, in its brief declined to specifically address the issue of the suppression of evidence in Defendant Jones’ case. The trial court’s decision in Defendant Jones’ case rested solely upon the conclusion that the evidence seized as a result of the stop of Defendant McClanahan was illegally seized and therefore could not be used to support probable cause to search Defendant Jones’ home. Perhaps the State assumed that arguing only the facts of Defendant McClanahan’s stop would suffice to address Defendant Jones’ case. Both defendants were represented by the same counsel and both defendants’ cases were included in one brief in this appeal. Despite the fact the State omitted any specific argument about suppression of evidence in Defendant Jones’ case, counsel for Defendants made the following argument in their brief: “All fruits of the stop as initiated by Officer Agee were of the poisonous tree as it pertains to the search of the residence of Ricky Jones. [citations omitted].” Under the circumstances I have no problem procedurally addressing the issue concerning the search warrant for Defendant Jones’ home.

I write separately because my review and interpretation of the record leads me to a different conclusion that those reached by my colleagues in their reasoned and well-written opinions. While I do concur with the results reached by Judge McMullen, I do so based upon different reasoning as herein expressed. Because I do agree with her conclusion, Judge McMullen writes as the majority.