APPELLATE COURT OPINIONS

The defendant, Andre Dotson, appeals from his 2005 Shelby County Criminal Court jury convictions on two counts of aggravated robbery and two counts of robbery. On appeal, the  defendant claims that the trial court erred (1) in joining four indictments for trial, (2) in severing, on the morning of trial, the charges against a co-defendant, (3) in excluding the co-defendant’s pretrial statement as evidence offered by the defendant, (4) in failing to hold that the evidence was insufficient to support three of the convictions, (5) in denying the defendant’s motion to allow him to sit with his attorney at the counsel table, (6) in failing to instruct the jury as to the shortcomings of eyewitness testimony, and (7) in sentencing the defendant as a multiple offender on two convictions and as a persistent offender on two convictions. We reverse one conviction of robberybut affirm the court’s judgments, as modified.

I concur with the court’s conclusion that the plaintiffs have not demonstrated that the provision in the Commercial Provider Administration Manual requiring them to be responsible for one-half of the fees and expenses directly related to conducting the arbitration renders arbitrating
their claims prohibitively expensive. The plaintiffs have the burden of proof on this point, Green Tree Fin. Corp. - Ala. v. Randolph, 531 U.S. 79, 92, 121 S. Ct. 513, 522 (2000), and thus they must demonstrate that it will be prohibitively expensive for them to pursue their claims in the arbitral
forum.

The plaintiffs’ claims for relief in this case go far beyond disputes over specific charges to particular patients. They have presented no evidence 1 that it will be more expensive to arbitrate their claims than it would be to litigate them. See Bradford v. Rockwell Semiconductor Sys., Inc., 238 F.3d 549, 556 (4th Cir. 2001); In re Currency Conversion Fee Antitrust Litig., 265 F. Supp.2d 385, 411 (S.D.N.Y. 2003). In the absence of this sort of evidence, the trial court properly declined to invalidate the arbitration provision.

This case arises from post-divorce proceedings concerning custody of the parties’ minor child.  Mother/Appellant appeals from the order of the trial court granting primary residential custody to Father/Appellee. Specifically, Mother asserts that the trial court erred in disallowing testimony at the hearing. Father also raises an issue concerning whether the trial court erred in not making an award of retroactive child support.  Finding no error, we affirm.

This is a medical malpractice action in which Plaintiff alleges Defendant physician failed to obtain informed consent. The trial court awarded Defendants summary judgment upon finding that Plaintiff’s amended expert affidavit failed to comply with Tennessee Code Annotated § 29-26-115(a)(1) and that Plaintiff had failed to file the amended affidavit by the deadline imposed by the court.  We affirm summary judgment for Defendant under § 29-26-115(a)(1).
 

The petitioner pled guilty to three counts of selling cocaine over .5 grams within 1000 feet of a school. He was also convicted in a jury trial of a fourth count for the same offense. The trial court sentenced the petitioner to fifteen years for each conviction to run concurrently. The petitioner was unsuccessful on his direct appeal and appeal of a certified question. The petitioner timely filed a petition for post-conviction relief arguing that his rights of equal protection were violated. The post-conviction court denied the petition. We affirm the judgment of the post-conviction court.

This is a petition for attorney’s fees in probate. The petitioner attorney was retained to represent the estate in the underlying probate action. After his duties were essentially completed, the representatives of the estate hired new counsel for the estate. The petitioner attorney then filed a petition for attorney’s fees, asserting that there had been an oral contract for 3% of the estate’s assets.  The estate’s representatives objected, contending that there had been no agreement on attorney’s fees, and that the amount of the fee requested was excessive. After a hearing, the trial court determined that the parties had entered into the agreement as asserted by the attorney, and that the fee agreement was reasonable at the time it was made. Therefore, the trial court enforced the fee agreement and entered a judgment in favor of the petitioner. The estate now appeals. We affirm, concluding that the evidence does not preponderate against the trial court’s decision.

This is a post-divorce petition to modify child support. When the parties divorced in 1995, the mother was granted custody of the parties’ two children, and the father was ordered to pay child support. The father was self-employed. In 2003, the mother filed the instant petition to increase the father’s child support obligation, alleging that the father’s income had increased since the divorce.  The mother sought to prove the amount of the father’s income by submitting into evidence his bank
statements for the previous three-year period, and calculating from that his average monthly deposits.  In response, the father filed an affidavit stating that he received less monthly income from his various business interests than the mother’s proof indicated. At trial, he relied on his own testimony, the testimony of his accountant, and the gross income reported on his federal income tax returns. After a trial, the trial court found the father’s testimony credible and concluded that the father’s income tax returns were the best evidence of his income. Based on the tax returns, the trial court held that the father’s level of income did not result in a significant variance in his child support obligation and consequently denied the mother’s petition. The mother now appeals. We vacate in part and modify in part, finding that the evidence preponderates against the trial court’s holding that the father’s income tax returns accurately reflected his income, as that term is defined in the Child Support Guidelines, and find a significant variance in his child support obligation based on the father’s pretrial affidavit and his testimony as to his income.

This is a divorce case. After ten years of marr iage, the parties separated. Subsequently, their marital home was destroyed in a fire. The husband then executed a quit claim deed on the home to the wife.  Consequently, the insurance proceeds on the home were paid to the wife, with none distributed to the husband. Both parties then filed for divorce. During the trial, the husband testified that the wife persuaded him to quit claim his interest in the home to her so that she could deal with the insurance company and sell the land on which the home stood. The husband sought a share of the insurance proceeds and the proceeds from the sale of the land. The wife alleged that the husband quit claimed his interest in the home to her as a gift. At the conclusion of the divorce proceedings, the trial court held, inter alia, that the home was a marital asset, despite the existence of the quit claim deed, and granted husband a share of the proceeds from the insurance and the sale of the land. The wife appeals. We affirm, finding that the evidence does not preponderate against the trial court’s conclusion that, by executing the quit claim deed the husband did not intend to make a gift of his interest in the property to the wife.

It is difficult for this member of the Court to believe that husband, who had been married twice before, did not understand the effect of a deed or that he was “duped” by wife into conveying his property. The more likely scenario is that husband was fearful that wife would gain an interest in his business and that he agreed to convey the residential property in exchange for her acquiescence not to seek such an interest.

The Petitioner, Bradley Copeland, filed a pro se petition for a writ of habeas corpus. The habeas court denied relief, and the Petitioner filed a timely notice of appeal. On appeal, the Petitioner contends that he is entitled to habeas corpus relief because the trial court erred when it re-sentenced him to a longer effective sentence than he received for his original convictions, and that his guilty pleas were constitutionally defective. Finding no reversible error, we affirm the judgment of the habeas court

A Bradley County jury convicted the Defendant of one count of reckless homicide and one count of abuse of a corpse. The trial judge imposed a three year sentence and a one year sentence, respectively, and it ordered the sentences run consecutively. The trial court determined that the Defendant should receive probation on time served for the three year sentence and probation effective immediately for the one year sentence, in part because the Defendant had already spent sixteen months in jail before trial. The State appeals contending the trial court erred in sentencing the Defendant because the trial court mistakenly believed it was required to place the defendant on probation. We agree and reverse the judgment of the trial court.

I join with my colleagues in all respects, save one, I would affirm the sentence as imposed.

A Franklin County Circuit Court jury convicted the appellant, MaryAnn McNeilly, of driving under the influence (DUI), a Class A misdemeanor. The trial court sentenced her to eleven months and twenty-nine days, to be suspended after serving ten days in confinement; imposed a three hundred fifty dollar fine; ordered that she perform one hundred hours of public service; and suspended her driver’s license for one year. On appeal, the appellant claims (1) that the trial court should have suppressed her statement to a police officer; (2) that the trial court improperly allowed the State to replay a videotape of the appellant’s stop for the jury; (3) that the trial court improperly admitted the appellant’s blood test results into evidence because the State failed to establish a proper chain of custody; (4) that the trial court erred by refusing to allow defense witnesses to testify about the appellant’s character; (5) that the evidence is insufficient to support the conviction; (6) that her sentence is excessive; and (7) that these cumulative errors denied the appellant her right to a fair trial.  Upon review of the record and the parties’ briefs, we affirm the appellant’s conviction but modify her sentence to reflect that she is to serve five days in confinement and remand the case for entry of an amended judgment.

The Appellant, Louis Tyrone Robinson, proceeding pro se, presents a Rule 3 appeal from the  Gibson County Circuit Court’s denial of his “Motion to Reopen Post-Conviction Petition.” Robinson seeks post-conviction relief in five separate cases arising from crimes which occurred during a period between August 1989 and October 1992. The post-conviction court denied Robinson’s motion on the following grounds: (1) that the motion failed to present a new claim of constitutional error under the limited circumstances set out in Tennessee Code Annotated section 40-30-117; (2) that no postconviction petition had ever been filed in four of the five cases; (3) that the statute of limitations had expired for post-conviction relief; and (4) that Robinson’s claims had been previously addressed.  Because the Appellant failed to comply with the statutory requirements for appealing the denial of a motion to reopen, this court is without jurisdiction to review the issue. Accordingly, the appeal is dismissed.

The Appellant, Michael Evans, appeals the Shelby County Criminal Court’s dismissal of his petition for post-conviction relief. Evans’ petition was summarily dismissed by the post-conviction court upon grounds that it was time-barred by the statute of limitations. On appeal, Evans contends that application of the statute of limitations in this case serves to deny him his right to due process.  Following review of the record before us, we affirm the dismissal of the petition as it was filed outside the one-year statute of limitations and because Evans has failed to establish any ground which would support a tolling of the statute.

The trial court denied Father’s petition to modify custody of the parties’ child upon finding no material change of circumstances had occurred.  We affirm in part and remand.

The Appellant, Carlos Burris, was convicted by a Madison County jury of misdemeanor possession of cocaine. On appeal, Burris argues that the evidence is insufficient to support the conviction.  After review, we affirm the judgment of conviction.

The Appellant, Audra Lynn Johnson, entered a best interest plea and reserved for appeal a certified question of law: whether the trial court possessed territorial jurisdiction to try the out-of-state defendant. We conclude that the trial court lacked territorial jurisdiction.

The defendant appeals from his jury convictions of criminal trespass (Class C misdemeanor), assault (Class A misdemeanor), aggravated burglary (Class C felony), aggravated assault (Class C felony), and theft (Class A misdemeanor). The defendant received an effective sentence of five and one-half years incarceration plus two jail terms of eleven months and twenty-nine days. Issues presented on appeal are the sufficiency of the evidence and the propriety of the consolidation of offenses from two indictments involving separate dates with a single victim. After review, we have concluded that the convictions were supported by sufficient evidence and that the defendant waived the severance of the offenses issue. The judgments from the trial court are affirmed.

The defendant, Antonio George, was convicted of carjacking, a Class B felony, and sentenced as a Range I, standard offender to eight years in the Department of Correction. On appeal, he argues that (1) the evidence is insufficient to support his conviction; (2) the trial court erred in excusing a prospective juror who had a pending criminal case; (3) the trial court erred in restricting the cross-examination of the lead investigating officer; (4) the trial court erred in failing to charge the lesser-included offenses of theft and robbery; and (5) the trial court erred by not giving a curative jury instruction regarding a comment made by the prosecutor. Following our review, we reverse the judgment of the trial court and dismiss the charge against the defendant.

The petitioner, Michael Williams, appeals the denial of post-conviction relief. Specifically, he contends that trial counsel was ineffective by failing to have him undergo a mental evaluation prior to trial. Upon review, we conclude that the petitioner has failed to meet his burden that: (1) his counsel was deficient in her performance, and (2) he was prejudiced in his claim of ineffective assistance. We affirm the post-conviction court’s denial of relief.

Defendant, Marco Hughlett, was indicted under alternative theories, charging Defendant in count one with committing aggravated robbery by violence, and in count two, with committing aggravated robbery by placing the victim in fear. The jury convicted Defendant under both counts.  Following a sentencing hearing, the trial court sentenced Defendant as a Range I, standard offender, to eleven years for each conviction. The trial court merged Defendant’s conviction of aggravated robbery in count two with his conviction of aggravated robbery in count one. In his sole issue on appeal, Defendant challenges the sufficiency of the convicting evidence. After a thorough review of the record, we affirm the judgment of the trial court.

Proceeding pro se, the petitioner, Miko T. Burl, appeals the Shelby County Criminal Court’s denial of his motion to reopen his post-conviction proceeding. On appeal, the petitioner contends the court erred by dismissing his petition without holding an evidentiary hearing and claims he is entitled to relief based upon the ruling in Blakely v. Washington, 542 U.S. 296 (2004). Following our review, we dismiss the appeal.

The appellant, Tyree Robinson, was convicted by a jury in the Shelby County Criminal Court of premeditated murder, felony murder, and especially aggravated robbery. The appellant received a total effective sentence of life without the possibility of parole plus twenty years. On appeal, the appellant argues that the evidence is insufficient to support his convictions; the trial court erred in failing to instruct the jury that Brown, Morris, and Courtney Perry were accomplices as a matter of law; the trial court abused its discretion in allowing hearsay statements; and the trial court erred in responding to a jury question. Upon review of the record and the parties’ briefs, we reverse the judgments of the trial court and remand for a new trial.

The Petitioner, Harvey S. Burns, ¹ pled guilty to selling less than one-half gram of cocaine. At the guilty plea hearing, the Petitioner accepted a sentence of thirteen years as a Range III, persistent offender. The Petitioner timely filed a pro se petition for post-conviction relief, and after being appointed counsel, filed an amended petition for post-conviction relief. After a hearing, the trial court denied the petition for post-conviction relief. In this appeal, the Petitioner asserts that he received the ineffective assistance of counsel and that his plea was not knowingly, voluntarily, and intelligently entered. We affirm the judgment of the trial court.