APPELLATE COURT OPINIONS

The Defendant, Ladarion Pearson, entered guilty pleas to one count of aggravated criminal trespassing, two counts of assault, one count of aggravated burglary, and one count of robbery. He received an effective sentence of five years to be served in the Department of Correction. On appeal, the Defendant contends that the trial court erred in denying his request for alternative sentencing. Upon review, we affirm the judgments of the trial court.

A Shelby County Jury convicted Defendant, Khaliq Ra-el, of attempted voluntary manslaughter, reckless aggravated assault, and employing a firearm during the commission of a dangerous felony. He received concurrent sentences of three years each for attempted voluntary manslaughter and reckless aggravated assault to be served consecutively to a six-year sentence for employing a firearm during the commission of a dangerous felony. On appeal, Defendant argues that the evidence was insufficient to support his convictions for attempted voluntary manslaughter and employing a firearm during the commission of a dangerous felony. After a thorough review, we affirm the judgments of the trial court.

I concur in the result reached by the majority. I write separately to respectfully depart from the majority’s undertaking an analysis of the sufficiency of the evidence of passion and provocation. In my view, the reference to passion and provocation in the voluntary manslaughter statue does not denote an essential element of the offense. It describes a dispensation to a defendant who, having intentionally or knowingly killed another, would otherwise be guilty of first degree or second degree murder respectively.

This is a Rule 9, Tennessee Rules of Appellate Procedure, interlocutory appeal by the State of Tennessee of the trial court’s granting in part the defendant’s motion to suppress. On March 1, 2012, the Shelby County Grand Jury returned a two-count indictment charging the defendant, Marvin Roscoe, with DUI and DUI over .08%. The defendant filed a motion to suppress any evidence seized or statements made as a result of his stop and arrest. The trial court entered an order denying in part the defendant’s motion to suppress any evidence pertaining to the initial traffic stop and granting in part the  defendant’s motion to suppress any evidence pertaining to the defendant’s subsequent arrest. The State now appeals, arguing that the trial court erred in granting in part the defendant’s motion to suppress the evidence regarding his subsequent arrest. Based upon our review, we reverse the judgment of the trial court and remand for further proceedings consistent with this opinion.

This appeal involves private condemnation of an easement. The plaintiffs and the defendant both owned property on an island in the Tennessee River. There was a causeway or land bridge across the river, connecting the island to the mainland. The trial court rejected the defendant’s claim for private condemnation of an easement on the plaintiffs’ property to enable the defendant to access the causeway.  It also enjoined the defendant from using the causeway or from entering onto the plaintiffs’ property to get to the causeway. The defendant appeals. We hold that the causeway is accessible by the public and so vacate the injunction. We reverse the trial court’s decision on the defendant’s private condemnation claim and hold that the defendant is entitled to condemnation of an appropriate easement under the facts of this case.

Employee settled her workers’ compensation claim in 1997, with her employer agreeing to provide future medical benefits. Her authorized treating physician later retired, and in November 2007, the employee selected a new physician from a panel provided by her employer. The new physician recommended a home exercise program, which the employee believed was not adequate treatment. She filed a petition requesting a new panel of physicians. Her employer opposed the petition, contending that it had provided treatment in accordance with the law and the terms of the settlement. The trial court ordered the employer to provide a panel of orthopaedic surgeons to evaluate the employee’s current need for treatment. The employer has appealed, and the appeal has been referred to the Special Workers’ Compensation Appeals Panel for a hearing and a report of findings of fact and conclusions of law pursuant to Tennessee Supreme Court Rule 51. We affirm the judgment of the trial court and remand for further proceedings.

A Madison County Circuit Court jury convicted the Defendant-Appellant, Bobby Joe Croom, as charged of three counts of rape of a child, a Class A felony, and three counts of aggravated sexual battery, a Class B felony. See State v. Bobby Joe Croom, No. W2011-00461-CCA-R3-CD, 2012 WL 1656718, at *1 Tenn. Crim. App. May 10, 2012). In his first direct appeal, Croom argued that the trial court erred in failing to require the State to elect the particular instances of rape and sexual battery on which it was relying for each conviction and that the evidence was insufficient to support his convictions. Id. at *1. In counts 1 through 4, which charged Croom with rape of a child and aggravated sexual battery during the period of July 1-4, 2009, and with rape of a child and aggravated sexual battery during the period of July 5-11, 2009, this court reversed Croom’s convictions, dismissed his charges, and vacated his sentences after concluding that there was no proof presented at trial that the offenses occurred within the time periods charged. Id. at *8. The court also reversed Croom’s convictions in counts 5 and 6, which charged Croom with rape of a child and aggravated sexual battery during the period of July 12-18, 2009, and remanded the case for a new trial on those counts. Id. Following a retrial on counts 5 and 6, Croom was again convicted as charged, and the trial court imposed consecutive sentences of thirty-five years for the rape of a child conviction and fifteen years for the aggravated sexual battery conviction. In this direct appeal, Croom argues that (1) the trial court erred in allowing a physician to testify about the statements made by the victim and the victim’s mother during a medical examination and erred in admitting the physician’s medical report containing those statements because the statements were not made for the purposes of medical diagnosis and treatment pursuant to Tennessee Rule of Evidence 803(4), and (2) the evidence is insufficient to sustain his convictions. Upon review, we affirm the judgments of the trial court.

This is a medical negligence/wrongful death case. Following their mother’s death, Appellants’ filed the instant lawsuit against several doctors who provided treatment to their mother. During discovery, Appellants allegedly learned that the Appellee physician had amended his original consultation report to correct a mis-diagnosis of the Decedent’s condition. Appellants were granted leave to amend their complaint to add the Appellee and his medical practice as defendants to the lawsuit. The amended complaint naming the Appellees was filed some five years after the filing of the original lawsuit. Appellees moved for summary judgment on the ground that the statutes of limitations and repose barred Appellants’ case. The trial court granted summary judgment, finding that the Appellants had not shown facts sufficient to establish fraudulent concealment on the part of the Appellee physician so as to toll the applicable one-year statute of limitations and three-year statute of repose under Tennessee Code Annotated Section 29-26-116. The trial court also found that Appellants had failed to exercise due diligence in discovering the alleged fraudulent concealment. Appellants appeal. For the reasons stated herein, we affirm and remand.

This appeal involves the termination of a State employee.  The employee was late for work on numerous occasions prior to and throughout 2010. She sustained an at-work injury in October 2010. On January 15, 2011, she was tardy for work and a termination proceeding was commenced shortly thereafter. Prior to her receipt of the letter recommending termination, the employee tendered a request for FMLA leave, which leave was approved after termination was recommended, but before termination was confirmed. The Civil Service Commission affirmed the employee’s termination. The Chancery Court affirmed the employee’s termination and it dismissed her interference with FMLA claim. We affirm.

The Defendant, Angela M. Greene, was convicted by a McMinn County Circuit Court jury of first degree felony murder in the perpetration of theft, a Class A felony; aggravated assault, a Class C felony; and theft of property valued at $1000 or more but less than $10,000, a Class D felony. See T.C.A. §§ 39-13-202(a)(2) (2010) (first degree murder), 39-13-102 (Supp. 2009) (amended 2010, 2011, 2013) (aggravated assault), 39-14-103 (2010) (theft of property); 39-14-105(3) (2010) (amended 2012) (grading of theft). The trial court sentenced the Defendant to life as a violent offender for the first degree murder conviction, six years as a Range I, standard offender for aggravated assault, and four years as a Range I, standard offender for theft. The aggravated assault and theft sentences were imposed consecutively to each other but concurrently with the life sentence. On appeal, the Defendant contends that (1) the evidence is insufficient to support the convictions and (2) the trial court erred in admitting evidence of the victim’s hearsay statements. We affirm the judgments of the trial court.

The petitioner, Charles McHaney, filed a petition in the Davidson County Criminal Court, seeking post-conviction relief.  The post-conviction court dismissed the petition as untimely. On appeal, the petitioner challenges the dismissal.  Upon review, we affirm the judgment of the post-conviction court.

Petitioner, Reginald Fowler, was convicted of aggravated arson following a bench trial, and he was sentenced to twenty years in the Tennessee Department of Correction. Following an unsuccessful direct appeal, he filed the instant petition for post-conviction relief raising the following issues: (1) whether he was denied a fair trial due to the alleged impairment of the trial judge; (2) whether ineffective assistance of trial counsel rendered his waiver of a jury trial involuntary; and (3) whether trial counsel’s assistance was ineffective by failing to present the testimony of a pharmacologist at trial. After an evidentiary hearing, the postconviction court denied relief. Following our review, we affirm the judgment of the postconviction court.

Defendant, James Jones, was charged by indictment with the offense of aggravated robbery. A jury found him guilty of the lesser included offense of facilitation of aggravated robbery, a Class C felony. At the sentencing hearing, the trial court denied Defendant’s request to be placed on judicial diversion. Instead, the trial court sentenced Defendant to serve four years of incarceration. Defendant raises one issue on appeal. He argues that the trial court should have ordered judicial diversion. After a thorough review of the record and the parties’ briefs, we affirm the judgment of the trial court.

This is a medical malpractice wrongful death action. After the plaintiff filed this lawsuit, he timely filed a certificate of good faith, as required by the medical malpractice statute. The certificate did not include a statement that the executing party had “zero” violations of the statute. The defendants filed a motion to dismiss based on this omission. The plaintiff in turn filed a notice of voluntary nonsuit without prejudice. The defendants objected to a dismissal without prejudice. The defendants argued that, if the certificate of good faith does not strictly comply with the statutes, the trial court must dismiss the case with prejudice. The trial court granted the voluntary nonsuit without prejudice, and the defendants now appeal that decision. DIscerning no error, we affirm.

This case involves a dispute regarding the use of an abandoned county road.  The road runs through the land of John George, Appellee, who sought to deny his neighbors, Thomas and Bobbye Hager, Appellants, access to the road. The Hagers brought suit claiming they had acquired rights to use the road through adverse possession, a private access easement pursuant to the abandonment of a public road, or a prescriptive easement. The trial court found that the Hagers had established the creation of a prescriptive easement butlimited their right to maintain the easement to emergency conditions only. The Hagers argue that the trial court erred in restricting their ability to reasonably maintain the easement. Mr. George contends that the trial court erred in finding the Hagers had acquired rights in the road through a prescriptive easement. We find that the trial court correctly held that the Hagers acquired a prescriptive easement but that a right to conduct reasonable maintenance is a necessary incident of an easement by prescription. Accordingly, we affirm in part, reverse in part, and remand to the trial court for further proceedings.

This is an appeal from an order setting aside a default judgment. Because the order appealed does not resolve all the claims between the parties, we dismiss the appeal for lack of a final judgment.

A Davidson County jury convicted the Defendant, David Wayne Felts, of six counts of rape of a child and two counts of aggravated sexual battery.  The trial court sentenced the Defendant as a Range II, multiple offender to a total effective sentence of one hundred and fourteen years to be served in the Tennessee Department of Correction.  On appeal, the Defendant contends: (1) the evidence is insufficient to support his rape of a child conviction in Count 2; (2) the trial court failed to compel the State to elect specific facts sufficient to distinguish Count 6 from Count 5; (3) the trial court erred when it admitted into evidence the victim’s statement to a nurse practitioner as a statement made for the purpose of medical diagnosis and treatment, pursuant to Tennessee Rule of Evidence 803(4); (4) the trial court erred when it admitted into evidence the victim’s statement as a prior consistent statement; and (5) the trial court imposed an excessive sentence.  After a thorough review of the record and applicable law, we affirm the judgments of the trial court.

The Petitioner, Antwon Cook, appeals the Bradley County Criminal Court’s denial of his petition for a writ of error coram nobis regarding his convictions for possession of more than one-half gram of cocaine with the intent to sell and sale of more than one-half gram of cocaine, for which he is serving an effective eight-year sentence. The Petitioner contends that the trial court erred by denying him relief. We affirm the judgment of the trial court.

The petitioner, Antwan Yumata Hunter, pled guilty to one count of the sale of less than 0.5 grams of cocaine, a Class C felony.  On appeal, he argues that he received ineffective assistance of counsel that rendered his guilty plea involuntary.  Specifically, he contends that trial counsel were ineffective for failing to advise him of a mandatory fine that accompanied his guilty plea; for failing to file pretrial motions, including a motion to suppress; and for failing to fully investigate his case.  After a thorough review of the record, we affirm the judgment of the post-conviction court.

Petitioner, Jeffery Odom, was convicted and sentenced for two felonies, with his sentences to be served concurrently.  He filed a petition for habeas corpus relief, contending that the concurrent sentences violated a statute that required consecutive sentencing under the circumstances.  The trial court dismissed his petition.  He filed a notice of appeal more than 30 days after the entry of the trial court’s order, in violation of Tennessee Rule of Appellate Procedure 4(b).  We dismiss this appeal because of the untimely filing.

This is a petition for dependency and neglect, child support, and breach of contract arising out of an international adoption.  The respondent adopted the subject child from Russia.  A few months later, after experiencing difficulties with the child, she placed the child on a oneway flight to Russia and sought to annul the adoption. The adoption agency that brokered the adoption filed this lawsuit against the respondent in juvenile court, seeking child support and alleging that the child was dependent and neglected. The juvenile court dismissed the case, and the case was appealed to the circuit court below. On appeal to circuit court, the petition was amended to add the child as a petitioner and to seek child support and damages arising out of the adoption contract. After protracted proceedings, the trial court granted the petitioners’ motion for default judgment against the respondent for failing to file an answer to the petition and failing to cooperate in discovery. The trial court later conducted a hearing on damages, at which the respondent did not appear. The trial court awarded damages to the petitioners and ordered the respondent to pay child support. It later denied the respondent’s motions for post-judgment relief. The respondent now appeals. Discerning no error, we affirm.

I concur with Judge Stafford’s thorough opinion. After several discussions and independent research, I believe that my colleagues are correct on the law.

This appeal concerns a dispute over damages in a fraud case. Bradley M. Barkhurst and his wife Judith R. Barkhurst (“the Plaintiffs”), victims of a Ponzi scheme, filed a complaint against Amparo Goyes Jarosh, personal representative of the estate of Charles D. Candler (“Defendant”) , in the Chancery Court for Knox County (“the Trial Court”). 1 The Trial Court granted summary judgment in favor of the Plaintiffs. The Plaintiffs appeal, arguing, among other things, that they should have been granted enhanced damages under the Tennessee Consumer Protection Act (“the TCPA”). We hold that enhanced damages are not available in an action against an estate. We also modify the Trial Court’s judgment to include in the award to Plaintiffs certain taxes and interest that the Plaintiffs incurred in the Ponzi scheme.
We affirm the judgment of the Trial Court as modified.

This appeal results from an automobile accident. The plaintiffs filed a negligence action against the owner and driver of the vehicle that collided with them. The jury that heard the matter concluded that the defendant driver was only 10 percent at fault, with the rest of the fault assessed to the plaintiff driver. The trial court entered judgment on the jury verdict for the defendants. After a motion for a new trial was denied, the plaintiffs filed this appeal. We affirm the judgment of the trial court.

The Defendant, Kenneth Hamm, was convicted by a Shelby County Criminal Court jury of attempt to commit rape of a child, a Class B felony. See T.C.A. §§ 39-13-522 (2010) (rape of a child), 39-12-101 (criminal attempt), 39-12-107 (criminal attempt classification). The trial court sentenced him as a Range I, standard offender to ten years and one month in confinement. On appeal, he contends that (1) the evidence is insufficient to support his conviction; (2) the trial court erred in admitting into evidence his uncorroborated statements to Officer Diffee; (3) the court erred in excluding evidence of the victim’s previous allegations of sexual abuse by others; and (4) the court erred by applying insufficient weight to the mitigating factors during sentencing. We affirm the judgment of the trial court.