APPELLATE COURT OPINIONS

The employee injured his back while performing heavy lifting at work. His workers’ compensation claim was settled with open medical benefits. Several years later, the employee’s authorized physician recommended a surgical procedure. The employer’s utilization review provider declined to approve the procedure, and the Department of Labor (“DOL”) sustained the denial. The employee then brought this action to compel the employer to provide the surgery. The trial court applied the Uniform Administrative Procedures Act (“UAPA”), pursuant to Tennessee Code Annotated section 4-5-101 et seq. (2005), and upheld the decision of the DOL. The employee has appealed. The appeal was referred to the Special Workers’ Compensation Appeals Panel for a hearing and a report of findings of fact and conclusions of law. Upon our review of the record and the applicable law, we reverse the judgment of the trial court. 

The Defendant, Marlo Davis, was charged with alternative counts of first degree felony murder and first degree premeditated murder. The jury convicted the Defendant of second degree murder as a lesser-included offense of felony murder and of reckless homicide as a lesser-included offense of premeditated murder. The trial court subsequently merged the reckless homicide conviction into the second degree murder conviction and sentenced the Defendant as a Range II offender to forty years’ imprisonment. The Court of Criminal Appeals affirmed. We granted the Defendant permission to appeal and now address three issues: (1) whether the trial court committed reversible error by admitting as substantive evidence a prior statement and the preliminary hearing testimony of a testifying witness; (2) whether the evidence was sufficient to support the Defendant’s alternative convictions of second degree murder and reckless homicide; and (3) whether the jury’s inconsistent verdicts entitle the Defendant to relief. We hold that the trial court’s admission of the testifying witness’ prior statement and preliminary hearing testimony was not reversible error and that the evidence was sufficient to support the Defendant’s convictions. We also reject the Defendant’s argument that the jury’s inconsistent verdicts entitle him to relief. Accordingly, we affirm the trial court’s judgment of second degree murder.

The Petitioner, Phillip Wayne Kelley, appeals the denial of his motion to vacate his convictions by the Circuit Court for Maury County.  On appeal, the Petitioner argues that the trial court erred in denying his motion to vacate his convictions because the trial court did not have jurisdiction to convict and sentence him.  Upon our review, we affirm the judgment of the trial court.

The Petitioner, Jackie D. Seymore, appeals the post-conviction court’s denial of relief from his convictions for rape of a child.  On appeal, he argues that he received ineffective assistance of counsel.  Upon review, we affirm the judgment of the post-conviction court.

A Putnam County jury convicted the Defendant-Appellant, Donald Ray Williams, of attempted second degree murder, a Class B felony; especially aggravated robbery, a Class A felony; and especially aggravated kidnapping, a Class A felony.  The trial court sentenced the Defendant to ten years at thirty percent release eligibility for the attempted second degree murder conviction, twenty years at one hundred percent release eligibility for the especially aggravated robbery conviction, and twenty years at one hundred percent release eligibility for the especially aggravated kidnapping conviction.  The trial court ordered the twenty-year sentences to be served consecutively to one another and concurrently with the ten-year sentence, for an effective forty-year sentence in the Department of Correction.  The sole issue presented for our review is whether the trial court erred in sentencing the Defendant.  Upon review, we affirm the judgments of the trial court.

The Defendant-Appellant, Christopher Dewayne Henson, was convicted by a Maury County jury of reckless endangerment.  The trial court sentenced the Defendant to 11 months and 29 days and ordered that he serve 45 days in confinement, with the remainder of his sentence to be served on supervised probation.  On appeal, the Defendant argues that (1) the evidence is insufficient to sustain his conviction; (2) the trial court erred in admitting color photographs of the victim’s injuries; and (3) the trial court abused its discretion in sentencing the Defendant.  Discerning no error, we affirm the judgment of the trial court.

The petitioner, Antwon Cook, appeals the dismissal of his petition for post-conviction relief. The post-conviction court found that the appeal was filed beyond the one-year statute of limitations and that due process did not necessitate an equitable tolling of the statute of limitations. On appeal, the petitioner contends that equitable tolling is warranted because his plea agreement that allowed for concurrent service of a state and federal sentence is not being honored. Upon our review, we affirm the judgment of the post-conviction court. 

The defendant, Joseph Cordell Brewer, III, was convicted of theft of property of $10,000 or more but less than $60,000, a Class C felony; evading arrest, a Class D felony; and evading arrest, a Class A misdemeanor. The trial court sentenced the defendant as a Range III, persistent offender to serve twelve years for the theft of property conviction, twelve years as a Range IV, career offender for the felony evading arrest conviction, and eleven months and twenty-nine days for the misdemeanor evading arrest conviction. The trial court ordered the sentences to be served concurrently to each other but consecutively to a prior sentence because the offenses were committed while the defendant was on parole. On appeal, the defendant argues that the evidence is insufficient to sustain his convictions for theft of property and Class D felony evading arrest. He also argues that the trial court improperly classified him as a persistent and career offender. After our review of the briefs, the record, and the applicable law, we conclude that the evidence is sufficient to sustain the defendant's conviction for theft of property but that his conviction for Class D felony evading arrest should be reduced to Class E felony evading arrest. Further, we conclude that the trial court properly sentenced the defendant as a persistent and career offender, but we remand the case for resentencing on the Class E felony.

The plaintiff tenant in this action rented an apartment from the defendant landlord. Attached to the apartment were a wooden deck and staircase leading to the ground below. The tenant filed suit against the landlord for injuries the tenant sustained when a board on the stairs collapsed, causing the tenant to fall. The trial court granted summary judgment in favor of the landlord because the tenant could not show that the landlord had knowledge of any dangerous condition on the leased premises. The tenant has appealed. Discerning no error, we affirm.

The defendant, Torrie D. Carter, appeals the summary dismissal of his motion filed pursuant to Rule 36.1 of the Tennessee Rules of Criminal Procedure to correct an illegal sentence. Discerning no error, we affirm the summary dismissal of his motion.

The petitioner, Gene Earl Stanley, appeals from the denial of his petition for post-conviction relief from his Sumner County Criminal Court jury convictions of one count of burglary, two counts of theft of property, felony evading arrest, reckless endangerment, driving under the influence of an intoxicant, and driving on a suspended license, claiming that he was denied the effective assistance of counsel.  Because the petitioner failed to establish by clear and convincing evidence facts that would support a conclusion that he was prejudiced by his counsel’s deficient performance, we affirm the judgment of the post-conviction court.

Pursuant to Rule 37(b) of the Tennessee Rules of Criminal Procedure, the defendant, Anthen Lee Parker, who entered pleas of guilty in two separate cases to driving after having been declared a motor vehicle habitual offender, appeals a certified question of law related to the validity of an earlier judgment declaring him a motor vehicle habitual offender. Discerning no error, we affirm.

Petitioner, Sylvia Laird, appeals the denial of her petition for post-conviction relief.  She claims that she received ineffective assistance of counsel when she was erroneously informed that she could not file a motion to withdraw her guilty plea before sentencing.  Consequently, Petitioner argues that a subsequent guilty plea agreement that determined her sentence was unconstitutional because it was entered unknowingly, involuntarily, and unintelligently.  After a careful review of the record, the parties’ briefs, and the applicable law, we conclude that Petitioner has proven that she is entitled to post-conviction relief and, therefore, reverse the decision of the post-conviction court.

Petitioner, David Edward Niles, was indicted for, and ultimately convicted of, first degree murder in Bedford County.  State v. David Edward Niles, No. M2011-01412-CCA-R3-CD, 2012 WL 1965438, at *1 (Tenn. Crim. App. Jun. 1, 2012), perm. app. denied (Tenn. Oct. 17, 2012).  His direct appeal was unsuccessful.  Id.  He subsequently sought post-conviction relief on the basis of ineffective assistance of counsel.  After a hearing, the petition was dismissed.  On appeal, Petitioner insists that the post-conviction court improperly dismissed the petition for relief and that he received ineffective assistance of post-conviction counsel.  After a review, we determine that Petitioner failed to establish that he received ineffective assistance of counsel at trial.  Further, we determine that Petitioner is not entitled to challenge the effectiveness of post-conviction counsel.  Consequently, the judgment of the post-conviction court is affirmed.

Appellant, Patricia Smith, was convicted of aggravated burglary, a Class C felony, and the trial court sentenced her to three years, suspended to probation after forty-five days in confinement. On appeal, appellant argues that there was insufficient evidence to support her conviction. Following our review of the parties' briefs, the record, and the applicable law, we affirm the judgment of the trial court.

The trial court terminated the parental rights of both mother and father on the ground of severe abuse. Because there is sufficient evidence to conclude that mother and father were engaged in methamphetamine manufacture in their home, we affirm the finding of severe abuse. However, because no clear and convincing evidence exists in the record that termination is in the child's best interest, we reverse the termination of both mother's and father's parental rights.

This is a will contest case.  The Decedent executed a will in 2006 and a codicil to the will in 2012.  The will specifically disinherited the Appellant, and the codicil removed one of the Decedent’s children as co-executor of the estate.  Appellant contested the will, arguing both that the Decedent lacked the testamentary capacity to execute either the will or the codicil and that the will was executed under undue influence.  The trial court found that the Decedent possessed the testamentary capacity necessary to execute both the will and the codicil and that the Decedent did not execute the will or codicil under undue influence.  On appeal, Appellant only challenges the trial court’s findings regarding the Decedent’s testamentary capacity.  Because the evidence does not preponderate against the trial court’s findings, we affirm.

Appellant tripped and fell on a concrete landing in a parking lot. At the time, Appellant was attempting to return to his vehicle, which was located in the parking lot of a separate retail establishment. Appellant suffered injuries from his fall and sued the parking lot owner for negligence. The parking lot owner moved for summary judgment. The trial court granted summary judgment in the owner’s favor, finding that the owner did not owe a duty to Appellant. We affirm.   

The Petitioner, Harry Joseph Chase, appeals as of right from the Greene County Criminal Court’s denial of his petition for post-conviction relief. In this appeal, the Petitioner asserts that he received ineffective assistance of counsel because lead trial counsel was not present when he pled guilty, did not review the Petitioner’s discovery with him, and did not fully discuss a possible self-defense claim with the Petitioner. Following our review, we conclude that the record supports the post-conviction court’s conclusion that the Petitioner received the effective assistance of counsel, and we therefore affirm the judgment of the post-conviction court.

This is the second appeal from an action filed by Plaintiff against the Tennessee National Guard in which he contends Defendant violated the Uniformed Service Employment and Reemployment Rights Act of 1994 (“USERRA”) by refusing to rehire Plaintiff after he returned from active duty military service. In the first appeal, we affirmed the grant of Defendant’s Tenn. R. Civ. P. 12.02(6) motion to dismiss for lack of subject matter jurisdiction based upon sovereign immunity from USERRA claims, noting that only the Tennessee General Assembly could waive the state’s sovereign immunity. See Smith v. Tennessee Nat. Guard, 387 S.W.3d 570 (Tenn. Ct. App. 2012). Shortly after we issued that opinion, the Tennessee General Assembly enacted Tenn. Code Ann. § 29-20-208, which waives sovereign immunity for USERRA claims that accrue on or after July 1, 2014. Relying on the new statute, Plaintiff filed a Rule 60 motion seeking to have his original lawsuit reinstated. The trial court denied the motion, finding that Plaintiff’s claim was still barred by sovereign immunity because it accrued before July 1, 2014. We affirm.

The parties were married for less than two years, and they had one child together who was three years old at the time of the divorce. Shortly after the child’s birth, Mother moved with the child to New York to be near her family. The trial court named Mother the primary residential parent, ordered Father to pay $697 a month in child support, awarded Father one weekend a month of visitation, and ordered Mother responsible for the transportation costs of the child to visit Father, including the cost of an additional ticket for a parent or guardian to fly with the three-year-old child. In dividing the parties’ property, the trial court found that a 2006 Range Rover, purchased by Father’s business before the marriage, was not marital property. Mother appeals the trial court’s ruling that she pay all transportation costs to facilitate Father’s parenting time, and the classification of the Range Rover. We have determined that the annual cost to Mother to transport the child to Tennessee to facilitate Father’s parenting time will likely exceed the annual award of child support until the child reaches the required age to fly alone, creating an injustice to Mother; moreover, Father only requested that Mother be responsible for half of the cost of transportation, not all costs. Concluding that the trial court abused its discretion, we modify the trial court’s judgment to require both parties to equally share the costs of transportation concerning Father’s parenting time. We affirm the trial court in all other respects. 

This is an appeal from the denial of a motion to compel arbitration in a healthcare liability case. The Decedent executed a power of attorney in favor of her daughter, the Appellee, granting Appellee broad powers, but exempting healthcare decisions. The Decedent was subsequently admitted to the Appellant nursing facility. The Appellee signed the Decedent's admission contract and a separate, voluntary arbitration agreement. After the Appellee filed this action against the nursing facility and its managing companies, the Appellants filed motions to compel arbitration pursuant to the arbitration agreement signed at the time of the Decedent's admission. The trial court denied the motions. We affirm.

Bank sued borrowers on a lost or destroyed promissory note. Borrowers, among other defenses, denied that the note was in default and the amount due. Borrowers also claimed that bank had destroyed the note with the intention of discharging the obligation. On cross-motions for summary judgment, the trial court entered judgment in favor of bank. Borrowers appeal, claiming the affidavits filed in support of the bank’s motion for summary judgment were deficient, the existence of disputed material facts, the indebtedness had been discharged, and that further discovery should have been permitted by the trial court. We vacate and remand.  

This is Plaintiff’s second appeal of the dismissal of his legal malpractice claim. The first appeal arose from the grant of a motion to dismiss under Tenn. R. Civ. P. 12.02(6) wherein the trial court concluded that Plaintiff’s cause of action accrued more than one year before the complaint was filed and was time barred. Based solely on a review of the allegations in the complaint, we concluded that the action was not time barred. See Davidson v. Baydoun, No. M2008-02746-COA-R3-CV, 2009 WL 2365563 (Tenn. Ct. App. July 31, 2009). On remand, the parties engaged in discovery, which revealed that Plaintiff knew he had been injured by Defendants’ alleged negligence more than one year before the commencement of this action. Defendants then filed a Tenn. R. Civ. P. 56.02 motion for summary judgment, which was properly supported by a statement of undisputed facts, contending they were entitled to judgment as a matter of law because Plaintiff’s claim was barred by the statute of limitations. The trial court summarily dismissed the complaint finding it was undisputed that Plaintiff knew he had suffered an injury because of Defendants’ alleged negligence more than one year before the commencement of this action. The trial court also granted Defendants’ motion for discretionary costs. On appeal, Plaintiff argues that the trial court erred by granting Defendants’ motion for summary judgment and by awarding Defendants discretionary costs. We affirm.