APPELLATE COURT OPINIONS

The petitioner, Antonio D. Vaughn, appeals the denial of his petition for post-conviction relief, arguing that he received ineffective assistance of counsel due to counsel’s failure to adequately communicate with him. After review, we affirm the denial of the petition.

In this case, Plaintiffs sought a permanent injunction and a declaratory judgment prohibiting Defendants from restricting the use of Marcum Creek Road. Defendants denied that Plaintiffs ever had a right of access to Marcum Creek Road and asserted that Plaintiffs had failed to state a claim upon which relief could be granted. Thereafter, Plaintiffs filed a separate motion for a temporary injunction. The trial court consolidated the hearing on the injunction motion with a trial on the merits and issued a declaratory judgment, providing that Marcum Creek Road was a public road and that the public should have uninterrupted use of the right-of-way. Defendants appeal, asserting that the trial court abused its discretion by consolidating the motion hearing with a trial on the merits. Defendants request remand of this case to the trial court for a trial on the merits. We affirm the judgment of the trial court.

This appeal involves a claim filed to recover real property and personalty that was allegedly misappropriated from Decedent prior to his death. Decedent died at the age of 89, leaving Wife and Son as his survivors. Prior to his death, Decedent transferred the majority of his monetary assets and real estate to Wife. Following his death, Son brought this action, alleging that Decedent did not have the mental capacity to execute the transfers and that the transfers were a result of undue influence exercised by Wife, who exploited her confidential relationship with Decedent and also committed fraud to complete the unlawful conversion of the entirety of the estate. The trial court dismissed Son’s claims and awarded any remaining personalty to Wife. Son appeals. We affirm the judgment of the trial court.

A Cocke County jury convicted the Petitioner, Billy Joe Carter, of first degree murder, first degree felony murder, and especially aggravated robbery. The jury sentenced him to life in the Department of Correction without the possibility of parole for the two first degree murder convictions, and the trial court sentenced him to 40 years in the Department of Correction as a Range II, multiple offender for the especially aggravated robbery conviction. On direct appeal, this Court ordered the trial court to merge the two first degree murder convictions, and we affirmed the Petitioner’s convictions in all other respects. State v. Billy Joe Carter, No. E2005-01282-CCA-R3-CD, 2007 WL 1515010 (Tenn. Crim. App. May 24, 2007), perm. app. denied (Tenn. Aug. 13, 2007). The Petitioner filed a petition for post-conviction relief claiming that he received the ineffective assistance of counsel because his trial counsel failed to request a pre-trial mental evaluation of him. After a thorough review of the record and applicable authorities, we affirm the post-conviction court’s dismissal of his petition.

Plaintiff filed suit against Vanderbilt University Medical Center for injuries she sustained during an MRI scan. The trial court held that the complaint stated a claim for medical malpractice and dismissed the complaint for failure to comply with the Tennessee Medical Malpractice Act (“TMMA”). Plaintiff appeals, asserting the complaint sounded in common law negligence and, alternatively, that the documents she filed complied with the TMMA. We affirm the trial court.
 

A healthy, living tree located in neighbor A’s yard was knocked over during a storm and fell into neighbor B’s yard. The trial court found that neighbor A was not liable to neighbor B for the resulting damage. We affirm.

The Petitioner, Abisai U. Maldonado, appeals as of right from the Shelby County Criminal Court’s summary dismissal of his petition for writ of habeas corpus. The Petitioner contends that he received an illegal, one-year sentence for a misdemeanor conviction. Following our review, we affirm the judgment of the habeas corpus court.

Appellant, Mark Zane Gibson, was indicted by the Monroe County Grand Jury for one count each of aggravated sexual battery, rape, and incest. At the conclusion of trial, the jury convicted Appellant of attempted aggravated sexual battery and rape. The trial court sentenced Appellant to an effective sentence of fifteen years. On appeal, Appellant argues that the evidence was insufficient to support his convictions and that the trial court erred in setting the length of his sentences by not applying any mitigating factors and in denying his request for alternative sentencing. We conclude that the evidence was sufficient to support the convictions. With regard to his sentence, Appellant committed the crime between July 1, 1982, and June 7, 2005. Therefore, the prior sentencing law should apply to his sentence unless Appellant executed an ex post facto waiver. There is no such waiver in the record, and it appears that the trial court applied the new sentencing act when sentencing Appellant. Therefore, Appellant’s sentence must be reversed and a new sentencing hearing must be held. For these reasons, we affirm Appellant’s convictions and reverse his sentence and remand for a new sentencing hearing.

A Davidson County jury convicted the Defendant, Mousen Yisak Aden, of aggravated robbery. The trial court sentenced the Defendant to eleven years in the Tennessee Department of Correction. On appeal, the Defendant asserts that the evidence is insufficient to support his conviction and that his sentence is excessive. After a thorough review of the record and applicable law, we affirm the trial court’s judgment.

This is a wrongful death action predicated on premises liability. The lawsuit arose out of a fight in the parking lot of a bowling alley owned by the defendants. After the plaintiffs’ 19-year-old son punched a member of a rival gang, another member of the rival gang drove up and shot the plaintiffs’ son in the chest, killing him. The plaintiffs filed this lawsuit against the defendant bowling alley owners for the wrongful death of their son; they asserted that the defendants acted negligently or recklessly in failing to provide adequate security on their premises. The defendants filed a motion for summary judgment. The trial court granted the motion on two bases: (1) the defendants did not owe a duty to the plaintiffs’ son to protect  him from the criminal acts of others, and (2) the undisputed evidence demonstrated that the plaintiffs’ son was at least 50% at fault for his death. The plaintiffs now appeal. We reverse, finding that the standard for summary judgment under Hannan v. Alltel Publishing Company has not been met in this case.

The Defendant, Leia Mellott, challenges her jury conviction for filing a false report, contending that the evidence presented at trial was insufficient to sustain her conviction. Following our review, we conclude that the evidence is insufficient to support the jury’s verdict that the Defendant made a knowingly false statement to law enforcement to obstruct their apprehension of a fugitive and reverse the judgment of the trial court.

This is a post-divorce case. Appellee Wife and Appellant Husband entered into a marital dissolution agreement, which was incorporated, by reference, into the final decree of divorce. The agreement provided for transitional alimony payments, which would “self-terminate” upon the occurrence of certain conditions, including cohabitation. Husband developed a belief that Wife was cohabitating and, relying on the self-termination clause, ceased payment of spousal support without court intervention. Wife subsequently filed a petition for civil contempt, seeking a monetary judgment in the amount of alimony arrears and attorney’s fees. The trial court determined that Husband was not in contempt, but awarded alimony arrears and attorney’s fees in favor of Wife. Husband appeals. Affirmed and remanded.

I fully concur in Judge Kirby’s well-reasoned analysis, and also agree with Judge Stafford that the word "costs" contained in the statute is ambiguous. I write separately to offer additional historical perspective and to more fully address the implications of the conclusions reached in Jacob v. Partee, No. W2012-00205-COA-R3-CV, 2012 WL 3249605 (Tenn. Ct. App. Aug. 10, 2012).

In this case, we address the bond requirements for an appeal from General Sessions Court to Circuit Court. The plaintiffs sued the defendant for damages in General Sessions Court, and a judgment was entered in favor of the defendant. The plaintiffs sought a de novo appeal to Circuit Court. Within ten days of the General Sessions Court judgment, the plaintiffs filed a notice of appeal and paid $211.50 to the General Sessions Court clerk, pursuant to T.C.A. 8-21-401(b)(1)(C)(i). The plaintiffs did not file any further bond at that time, but later filed a $500 cost bond. The Circuit Court dismissed the appeal sua sponte, holding that it lacked subject-matter jurisdiction because the plaintiffs had failed to comply with the appeal-bond requirement in T.C.A. 27-5-103. The plaintiffs now appeal. After careful review of the statutes and caselaw, we overrule this Court’s prior decision in Jacob v. Partee, No. W2012-00205-COA-R3-CV, 2012 WL 3249605 (Tenn. Ct. App. Aug 10, 2012), and conclude that payment of a cash bond in the amount of the statutory court costs set out in Section 8-21-401(b)(1)(C)(i) satisfied the plaintiffs’ obligation to “give bond with good security . . . for the costs of the appeal” under Section 27-5-103(a), and so the Circuit Court had subject matter jurisdiction over the appeal. Accordingly, we reverse the Circuit Court’s dismissal of the action and remand for further proceedings.

I agree with the result reached by the majority in this case. However, I write separately to emphasize my reasoning in concluding that an ambiguity exists, in direct contradiction to our earlier decision in Jacob v. Partee, No. W2012-00205-COA-R3–CV, 2012 WL 3249605 (Tenn. Ct. App. Aug. 10, 2012) (perm. app. denied Dec. 12, 2012).

Following a jury trial, Defendant, Gregory G. Spiceland, was convicted of one count of initiating the process to manufacture methamphetamine and one count of promotion of methamphetamine manufacture. Following a sentencing hearing, the trial court sentenced Defendant to eight years and two years respectively for his convictions, and the sentences were ordered to run concurrently. Defendant was ordered to serve a sentence of split confinement with one year of his effective sentence in confinement and the remainder suspended on probation. In this direct appeal, Defendant contends that the trial court erred by ordering a sentence of split confinement. Specifically, Defendant argues that the trial court should not have found that Defendant was engaged in a pattern of criminal conduct and that Defendant’s failure to complete his presentence report indicated that Defendant would not be successful on probation. Defendant also contends that the trial court erred by not ordering Defendant to serve his sentence on community corrections. Following a review of the record, we find that the trial court abused its discretion by ordering Defendant to serve a full year of his sentence by incarceration. We therefore reverse Defendant’s sentence and modify it so that Defendant serves 30 days of his sentence in confinement with the balance of his effective sentence served on probation, and remand to the trial court for entry of a judgment in accordance with this opinion.

The petitioner, Evetta Mai McGee, appeals the denial of her petition for post-conviction relief. The petitioner entered an open plea to one count of rape and was subsequently sentenced to a term of eleven years in the Department of Correction. On appeal, she contends that her plea was not entered knowingly and voluntarily because she did not comprehend that a "best interest" plea was actually a plea of guilty. She further contends that her plea was not proper because trial counsel was ineffective in failing to adequately prepare and interview witnesses. Following review of the record, the denial of post-conviction relief is affirmed.

The petitioner, John Joseph Kratochvil, appeals the denial of his petition for post-conviction relief. The petitioner pled guilty to second degree murder and received an agreed to sentence, out of range, of thirty-five years as a multiple offender. On appeal, he contends that his plea was not entered knowingly and voluntarily because he was denied his right to the effective assistance of counsel. Specifically, he contends that trial counsel was ineffective by: (1) failing to explain the difference between Range I and II sentences, sentencing outside of range, and the elements of the crime; (2) failing to inquire, investigate, or explain how the various circumstance in his case might have led to a competent defense involving "heat of passion"; (3) failing to investigate and move to suppress search warrants issued in the case; and (4) failing to inform the petitioner that the prosecution was statutorily required to provide a Notice of Enhanced Punishment within ten days of trial. Following review of the record, we affirm the denial of post-conviction relief.

The Petitioner, Curtis Keller, appeals the Circuit Court of Lauderdale County’s denial of his pro se petition for writ of habeas corpus. The State has filed a motion requesting that this Court affirm the trial court’s judgment pursuant to Rule 20 of the Rules of the Court of Criminal Appeals. Following our review, we grant the State’s motion and affirm the judgment of the trial court.

City enacted an ordinance imposing a temporary moratorium on development of land within a 250 foot corridor abutting land owned by developer. Developer sued City asserting claims forinverse condemnation,wrongfultaking,tortious interference with businessrelationships, and damages pursuant to 42 U.S.C. § 1983; City filed a motion to dismiss for failure to state a claim, which the trial court granted. Developer appeals, contending that the temporary moratorium constituted a taking and that the tortious interference with business relationships and interference with contract rights claims were allowed pursuant to the Tennessee Governmental Tort Liability Act. We affirm the trial court’s dismissal of Plaintiff’s tort claims and reverse the trial court’s dismissal of Plaintiff’s inverse condemnation and takings claims.
 

The Juvenile Court Referee named Mother as the child’s primary residential parent and awarded visitation rights to Father. Mother requested a rehearing of the Referee’s decision before the Juvenile Court Judge, alleging that “visitation was unfairly decided.” Prior to the rehearing, the parties filed numerous petitions and motions related to visitation and custody, including requests for orders of protection and petitions for contempt. After a ten-day hearing, the Juvenile Court found that it was in the best interest of the child that Father be named her primary residential parent. Mother argues on appeal that the Juvenile Court should have applied the “material change of circumstances” standard to the evidence before it, and that, in any case, naming Father the primary residential parent was not in the child’s best interest. We find, however, that the court was correct to decide the question of custody solely on the basis of the best interest of the child since this was not a modification action. Because the Mother has attempted to prevent Father from having any relationship whatsoever with his child, we also affirm the trial court’s judgment naming Father as the primary residential parent.
 

The Petitioner, Timothy A. Baxter, appeals the Circuit Court of Madison County’s dismissal of his petition for writ of error coram nobis. The State has filed a motion requesting that this Court affirm the trial court’s dismissal pursuant to Rule 20 of the Rules of the Court of Criminal Appeals. Following our review, we grant the State’s motion and affirm the judgment of the trial court.

The petitioner, Roger T. Johnson, appeals the Davidson County Criminal Court’s summary dismissal of his pro se petition for a writ of error coram nobis. The petitioner maintains that the dismissal was error because newly discovered evidence reveals that his guilty pleas were the result of fraud; therefore, his pleas were not knowingly and voluntarily entered. Upon review, we affirm the judgment of the coram nobis court.

The Defendant, William Benton Pamplin, pled guilty to burglary of an automobile, vandalism, burning of personal property, and possession of a weapon by a felon. The trial court sentenced him to a six-year sentence, which was to be served on probation. The Defendant’s probation officer filed a probation violation warrant, alleging the Defendant had violated the terms of his probation by filing a false police report. After a hearing, the trial court agreed and revoked the Defendant’s probation. On appeal, the Defendant contends that the trial court improperly ordered him to serve the balance of his sentence in confinement. After a thorough review of the record and applicable authorities, we conclude that the trial court did not err when it revoked the Defendant’s probation and ordered the Defendant to serve the balance of his sentence in confinement. We, therefore, affirm the trial court’s judgment.

The State of Tennessee Department of Children’s Services (“DCS”) filed a petition seeking to terminate the parental rights of Sheila W. (“Mother”) to the minor children Dacia S., Aerial W., and Teagan W. After a trial, the Trial Court entered its order terminating Mother’s parental rights to the Children after finding and holding, inter alia, that DCS had proven by clear and convincing evidence that grounds existed to terminate Mother’s parental rights pursuant to Tenn. Code Ann. § 36-1-113(g)(2) and § 36-1-113(g)(3) and that the termination was in the Children’s best interest. Mother appeals to this Court. We affirm.