APPELLATE COURT OPINIONS

In this expedited appeal, the primary issue presented for review is whether Knox County, Tennessee, has a valid governmental charter. A secondary issue is whether a term limits amendment to the county charter should be applied and, if so, to which of the elected county officials. We hold that while Knox County failed to comply with the enabling legislation for instituting a charter form of government, since September 1, 1990, Knox County has been governed under a de facto charter with a county mayor, county commissioners, and other de facto officers. For the reasons set out in this opinion, it is our conclusion that the term limits amendment meets due process guidelines and applies to all elected Knox County Government officials except for the court clerks and the school board member, each of whom is protected by either the state constitution or statute. The judgment of the Knox County Chancery Court, which invalidated both the charter and the amendment, is therefore affirmed in part and reversed in part.

Following a jury trial, Defendant, Leroy Sexton, was convicted of rape of a child and was sentenced to serve twenty-five years confinement in the Department of Correction. Defendant subsequently filed a motion for new trial which was denied by the trial court. He now appeals arguing that he is entitled to a new trial because (1) he received ineffective assistance of counsel at trial, and (2) the trial court committed reversible error by allowing the prosecutor to make improper statements during closing argument. After a thorough review of the record, we affirm the judgment of the trial court.

Petitioner, Michael Dwayne Edwards, was convicted by a Henry County jury of burglary and received a sentence of nine years as a Range III, persistent offender. His conviction was affirmed on appeal. State v. Michael Dwayne Edwards, No. W1999-00591-CCA-R3-CD, 2000 WL 674671 (Tenn. Crim. App. at Jackson, May 16, 2000), perm. to appeal denied (Tenn. Dec. 4, 2000). On March 22, 2006, the petitioner filed a pro se petition for writ of habeas corpus challenging his classification as a persistent offender. The trial court dismissed his petition without the appointment of counsel or an evidentiary hearing. Following our review, we reverse the judgment of the trial court and remand for appointment of counsel and an evidentiary hearing to determine whether the petitioner received an illegal sentence as the result of an improper range classification.

The petitioner, Bobby Blackmon, appeals the denial of his post-conviction petition and asserts that: (1) he was denied a full and fair post-conviction hearing; and (2) he received ineffective assistance of appellate counsel. Upon review, we conclude that the petitioner received a full and fair hearing and effective assistance of appellate counsel. The judgment denying post-conviction relief is affirmed.

Appellants Augustus and Sheila Beasley (the Beasleys) seek to challenge the denial of their request to appeal an adverse unlawful detainer judgment to circuit court and to set aside the foreclosure of their residence. Specifically, the Beasleys appeal the trial court’s grant of summary judgment to CitiFinancial Mortgage, Inc. (Citi) and denial of their petition for writs of certiorari and supersedeas, filed after the deadline for appealing the judgment as of right. The court denied the petition on the grounds that it did not set forth sufficient merits for removal to circuit court for a trial de novo. In the petition for writs of certiorari and supersedeas, the Beasleys advanced as grounds for review the insufficiency of funds for filing a timely appeal and premature foreclosure on their residence in violation of the deed of trust. On appeal, they contend these allegations constituted sufficient merits as required by Tennessee Code Annotated Section 29-18-129.  We reverse and remand.

In this case appealed by Defendant Robert Barnett from the Criminal Court of Shelby County, we review the sufficiency of the evidence convicting the defendant of theft of property valued between $1,000 and $10,000 and aggravated burglary. We find the evidence sufficient and affirm the judgments.

Petitioner/Appellant appeals the trial court’s denial of his appeal under a writ of certiorari arising from the decision of the Shelby County Civil Service Merit Board to terminate his employment with the Criminal Court Clerk’s Office.  We affirm.

This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel in accordance with Tennessee Code Annotated section 5-6-225(e) (3) for hearing and reporting of findings of fact and conclusions of law. At trial, the Appellant, Christopher Harville, was awarded benefits for total loss of his left arm. He has appealed alleging that the trial court erred in limiting benefits to those provided for a scheduled member under the Workers' Compensation Law and in not finding him permanently and totally disabled. We affirm.

The Defendant, Eric Williams, was convicted by a Shelby County jury of aggravated robbery. On appeal, he alleges there was insufficient evidence for any rational jury to convict him of that crime.  Finding no reversible error exists, we affirm the judgment of the trial court.

Appellant appeals the Criminal Court of Shelby County’s dismissal of his appeal from the Juvenile Court of Shelby County. The Criminal Court found that Appellant’s notice of appeal was not timely filed under T.C.A. § 37-1-159. Finding that the Appellant’s appeal was timely, we reverse and remand.
 

Following a revocation hearing, the trial court revoked the probation of Defendant, Efrem Ira McCory, and ordered him to serve his two-year sentence in confinement. In his appeal, Defendant argues that the trial court abused its discretion in revoking his probation. After a review of this matter, we affirm the judgment of the trial court.

The defendant, Ronnie R. Charleston, was convicted of felony murder, especially aggravated robbery, and second degree murder. He was sentenced as a Range III, persistent offender to a total effective sentence of life imprisonment plus fifty-five years. On appeal, he presents two issues for our review: (1) whether the evidence was sufficient to support his convictions; and (2) whether the trial court erred in determining the length and the manner of service of his sentences. Upon review, we affirm the judgments of the trial court.

On March 3, 2004, Petitioner, Christopher Schultz, pled guilty to two counts of first degree murder. The trial court sentenced Petitioner to serve two concurrent life sentences. On November 30, 2004, Petitioner filed a petition for post-conviction relief which the post-conviction court subsequently denied. In this appeal, Petitioner argues that the post-conviction court erred in denying him post-conviction relief because his guilty pleas were not knowingly and voluntarily entered. After a thorough review of the record, the judgment of the post-conviction court is affirmed.

Petitioner, Antonius Harris, appeals the dismissal of his petition for post-conviction relief which alleged that his trial counsel rendered ineffective assistance of counsel. Specifically, Petitioner contends that trial counsel’s assistance was ineffective for failure to call certain witnesses at trial.  Petitioner also contends that the trial court erred in failing to instruct the jury on self-defense as an affirmative defense and in imposing consecutive sentencing. After a thorough review of the record, we conclude that Petitioner has failed to show any deficiencies in his counsel’s assistance or prejudice for failing to call Petitioner’s suggested witnesses. Petitioner’s challenges to the trial court’s jury instructions and the imposition of consecutive sentencing were raised in Petitioner’s direct appeal and thus have been previously determined. Accordingly, we affirm the judgment of the post-conviction court.

In this post-divorce proceeding, the trial court granted the petition of Lee Alan Haines (“Father”) to change the custody of the parties’ two minor children from Lisa Dawn Winton Haines (“Mother”) to Father. The change in custody followed a bench trial at which the trial court heard, in chambers, the testimony of the children as elicited by the leading questions of the Guardian Ad Litem (“the GAL”). The examination took place outside the physical presence of counsel for the parties. Mother appeals, (1) challenging the change of custody; (2) questioning evidentiary rulings by the trial court; and (3) asserting that the trial court erred in allowing the children to be questioned in chambers by the GAL outside the physical presence of counsel for the parties. We hold that the in-chambers proceeding, as designed and conducted by the trial court, constitutes error. Because we deem the error to be a violation of due process and prejudicial to the judicial process, we vacate the trial court’s judgment in toto and remand for a new trial before a different judge.

The sole issue in this appeal involves the division of property upon the divorce of the two parties. Having reviewed the record, we modify the division as to one specific finding of fact and affirm the judgment as modified.

Following a jury trial, Defendant, Robert Weaver was convicted of one count of robbery, a Class C felony. The trial court sentenced Defendant as a Range II, multiple offender, to ten years. Defendant does not appeal the length of his sentence. Defendant argues, however, that the evidence was insufficient to support his conviction. After a thorough review, we affirm the judgment of the trial court.

Although I concur in the result and reasoning of reached by the majority opinion, I think it important to emphasize one point. I agree with the trial court that none of the allegations regarding Ms. Stinson’s stay at the nursing home prior to January 1, 2000, state any cause of action warranting relief. They were properly dismissed because there was no causal connection between those alleged incidents or omissions and the injuries suffered by Ms. Stinson due to the assault by Mr. Johnson.  That determination eliminates most of the allegations supporting the TAPA claims that Plaintiff wanted to add.

The estate of a former nursing home resident brought this wrongful death action, asserting sundry claims against the nursing home arising out of an attack on Mrs. Stinson by another resident. As a result of the attack, Mrs. Stinson was hospitalized and treated for injuries including a broken hip.  She died four months later of pneumonia. Initially, the claims against the nursing home sounded principally in medical malpractice, with the plaintiff contending the attack, injuries, and death were the result of a variety and series of acts and omissions of the nursing home, including failing to properly screen and/or subsequently discharge the resident who attacked Mrs. Stinson. The plaintiff additionally asserted claims against Genesis of Jackson, Inc., a provider of psychiatric services, and the State of Tennessee, contending they, along with the nursing home, were responsible for determining whether the resident who assaulted Mrs. Stinson should have been admitted or retained as a resident at the nursing home. The plaintiff’s claim against Genesis was dismissed by the trial court, and the claim against the State was denied by the Claims Commission. The plaintiff sought to amend the complaint to add a claim for attorney fees against the nursing home under the Tennessee Adult Protection Act. The trial court dismissed the TAPA claim finding the plaintiff’s claims sounded in medical malpractice and therefore, by statute, the exclusive remedy was under the Medical Malpractice Act. The plaintiff’s medical malpractice claims against the nursing home went to the jury. Following a six-day jury trial, the plaintiff was awarded $130,000 in compensatory damages against the nursing home. The plaintiff and the nursing home appeal. We affirm in part, vacate in part, and remand the surviving claims for a new trial.

Petitioner, Travis Parson, was convicted of two counts of especially aggravated robbery and one count of criminally negligent homicide. He was sentenced to consecutive sentences of twenty years for each robbery conviction, and a concurrent sentence of two years for his homicide conviction, for a total effective sentence of forty years. On direct appeal, this Court ruled that the record did not support consecutive sentencing, and that dual convictions for especially aggravated robbery violated principles of double jeopardy. We therefore modified one of the convictions to aggravated assault and remanded that conviction for sentencing. His total effective sentence was amended and reduced to twenty years. In September 2004, Petitioner filed a pro se petition for post-conviction relief alleging ineffective assistance of counsel. Counsel was appointed and an amended petition was filed.  The post-conviction court subsequently denied relief. Petitioner now appeals that denial arguing that counsel was ineffective for (1) failing to present a second defense of misidentification, and (2) failing to call Petitioner’s mother to “bolster” his alibi.

In this post-divorce proceeding, the trial court granted the petition of Lee Alan Haines (“Father”) to change the custody of the parties’ two minor children from Lisa Dawn Winton Haines (“Mother”) to Father. The change in custody followed a bench trial at which the trial court heard, in chambers, the testimony of the children as elicited by the leading questions of the Guardian Ad Litem (“the GAL”). The examination took place outside the physical presence of counsel for the parties. Mother appeals, (1) challenging the change of custody; (2) questioning evidentiary rulings by the trial court; and (3) asserting that the trial court erred in allowing the children to be questioned in chambers by the GAL outside the physical presence of counsel for the parties. We hold that the in-chambers proceeding, as designed and conducted by the trial court, constitutes error. Because we deem the error to be a violation of due process and prejudicial to the judicial process, we vacate the trial court’s judgment in toto and remand for a new trial before a different judge.

Defendant, Earnest Banks, pled guilty to burglarizing a motor vehicle. The trial court held a separate sentencing hearing. At the conclusion of the hearing, the trial court sentenced Defendant to three years as a Range II, multiple offender, to be served consecutively to a previous conviction. The trial court also denied Defendant’s request for alternative sentencing. Defendant appeals on the grounds that the trial court erred in setting his sentence above the minimum and in denying his request for probation. We affirm the judgment of the trial court.

A former spouse challenges the extension and modification of an Order of Protection, contending the proof was insufficient to justify either the extension or modification. Finding the record contains sufficient evidence from which the trial court could determine an extension and modification of the Order was necessary, we affirm.

I respectfully both concur and dissent from the majority opinion in this case. I agree with the majority that the Trial Court’s judgment should be modified to award alimony in futuro to Wife because Wife is not capable of being totally rehabilitated and that the amount of alimony awarded should be altered. However, I cannot concur with the amount awarded by the majority. 

My difficulty with the amount of alimony awarded by the majority is two fold. First, the majority operates under the assumption that this fifty-five year old adult, well educated and in good health, must be assumed, not proved but assumed, to have absolutely zero earning capacity.  This assumption, I believe, is contrary to both the evidence in this case and to the public policy of this state as established by the Tennessee Legislature by the enactment of the relevant statutory provisions related to alimony. Second, I believe the majority’s award of $9,000 per month in alimony in futuro exceeds Wife’s proven needs.

The majority correctly notes that Wife seriously inflated her stated expenses by literally thousands of dollars. For example, despite the fact that Wife testified that the marital home awarded to her in the property division is in “sound” condition, her claimed necessary expenses for
“home maintenance, labor, and repairs” run over $31,000 a year. This does not include the almost $5,000 per year for “equipment and replacement fund for the residence” that Wife claims is necessary. Nor does it include the over $14,000 per year for “lawn and garden maintenance” that Wife has included. Wife also includes $45,000 per year for her “savings fund.” Clearly the record shows that Wife’s proven expenses, and therefore her resulting need, is far less than the $9,000 per month awarded by the majority. Additionally, what should not be forgotten is that Wife, according to the majority, received assets totaling $1,468,758.00 in the property division. 

Of even greater concern to me is what I believe to be the majority’s failure to give effect to the Legislature’s stated public policy for this state. It is clearly the public policy of this state that where an economically disadvantaged spouse may be able to be rehabilitated, such a rehabilitation is the goal. See Tenn. Code Ann. § 36-5-121(d)(2). Likewise it is clear that alimony in futuro is appropriate to, in effect, make up the difference “where a spouse may be only partially rehabilitated....” See Teen. Code Ann. § 36-5-121(d)(4). I believe it is the clear public policy of this state, as shown by the statutes enacted by our Legislature, that each divorcing adult has to accept, to the extent feasible for that adult, responsibility for his or her own support. 

Despite the complete absence of any supporting evidence, the majority assumes that Wife, a healthy and well educated adult, has absolutely zero earning capacity and will always have zero earning capacity. It is equally clear from the evidence in the record and in the majority’s
opinion that Wife has made no effort to obtain gainful employment, while continuing to work virtually full time at her avocation, the animal shelter. While I believe the majority is correct that Wife cannot be sufficiently rehabilitated so as to obviate the need for any alimony in the future, there is absolutely nothing in the statutes or case law that requires or even permits this Court to assume that this healthy, well educated, fifty-five year old adult who has displayed the ability to work long
hours by her volunteer work at her avocation has zero earning capacity.

What is exceptionally telling is Wife’s statement in her brief, made with no citation to any supporting evidence, that “[a]t her age of 55, obtaining further education and training to improve her earning capacity to a reasonable level is not practical.” Apparently, the majority wholeheartedly accepts this conclusion despite all the evidence to the contrary. Likewise, it appears to be Wife’s position, and apparently is a position accepted by the majority, that if she cannot improve her earning capacity to what she believes is a “reasonable level”, she has zero earning capacity and never has to work at a job for pay. Again, I believe there is a total absence of evidence in the record supporting this conclusion by Wife as accepted by the majority. I believe the conclusion that a healthy, intelligent, and well educated fifty-five year old adult has zero earning capacity is both patronizing and unsupported either by the evidence in the record or the law of this state. I am unaware of anything in Tennessee law that requires Husband to continue to cover 100%
of Wife’s living expenses so that she may devote her full time to her avocation, the animal shelter, no matter how worthy such a cause may be. 

Taking all the above into consideration, I would, respectfully, vacate the Trial Court’s award of alimony and remand this matter to the Trial Court to receive additional proof to determine the appropriate amount of alimony in futuro to be awarded to Wife. On remand, I would instruct the
Trial Court that the alimony in futuro award must take into consideration Wife’s actual needs and likewise must consider her earning capacity. I would further instruct the Trial Court on remand that Wife, a healthy, smart, and well educated fifty-five year old adult who, in effect, works full time at her avocation rather than a vocation, cannot be found to have zero earning capacity. I believe such instructions on remand to be both necessary and appropriate given the record before us and relevant
Tennessee law.

From the record before us, it is without dispute that Wife is a fifty-five year old healthy, smart, and well educated adult who is prevented in no way from earning at least some minimal amount of income at a some full time paying employment. While such employment may well prevent Wife from continuing to devote her full time to her avocation, the animal shelter, I am aware of nothing in Tennessee law that says Wife should be permitted to continue her avocation rather than a vocation all at Husband’s continued expense. I believe the public policy of this state
as established by our Legislature requires no less. I believe it is clear public policy that a divorcing adult must be responsible, to the extent feasible given that adult’s circumstances and situation, for supporting himself or herself, and that each such adult’s earning capacity must be considered in determining whether or not alimony is appropriate, and if so, the amount. I believe to hold otherwise treats that adult as a dependent child solely because she or he is now a former spouse. I believe such a result is contrary to the clear public policy of this state, and I therefore, respectfully dissent from the majority’s opinion as to the amount of alimony awarded. I concur in the remainder of the majority’s opinion.

The owner of a tract of undeveloped commercial property in the city of Lawrenceburg asked the trial court to enjoin the lessees of that property from subletting it to the city for the purpose of building a retention pond. She claimed that such a use would constitute waste or create a permanent and private nuisance on the land. The trial court declined to issue the injunction and certified its decision as final for purposes of appeal. We reverse.