APPELLATE COURT OPINIONS

This appeals arises from the post-divorce modification of child support following the emancipation of the parties’ oldest of three children. Both parents appeal numerous rulings by the trial court including its child support calculations, a judgment against Mother arising from Father’s overpayment of child support following the emancipation of their oldest child, the imputation of income to Mother for voluntary unemployment, an upward deviation for extraordinary education expenses, allocation of the uncovered medical expenses, allocation of the tax exemptions for the two minors, and attorney’s fees. We have determined that although the trial court was justified in finding a deviation for extraordinary education expenses, the trial court erred by applying the deviation prospectively rather than retroactively to the date of the petition. We reverse the trial court only on this issue and remand for the trial court to recalculate the amount of child support and the judgment against Mother consistent with this finding. We affirm the trial court in all other respects and deny both parties’ request to recover attorneys’ fees incurred in this appeal.

This case presents the issue of whether citizens who reside on real property that is proposed for deannexation by a municipal ordinance may, pursuant to Tennessee Code Annotated § 6-51-201 (2011), properly bring a quo warranto or declaratory judgment action against the municipality to challenge adoption of the deannexation ordinance. The trial court dismissed these claims against the municipality, and the plaintiffs have appealed. The plaintiffs have also taken issue with the propriety of the trial court’s determination regarding who would be qualified to vote in the referendum election, as well as other procedural and evidentiary issues. Discerning no error, we affirm the decision of the trial court.

The defendant, Armard Reeves, was convicted of one count of unlawful and knowing possession with intent to deliver three hundred pounds (300 lbs) (136,050 grams) or more of a controlled substance, to wit: marijuana. The trial court sentenced the defendant as a Range I offender to the maximum sentence of twenty-five years in the Tennessee Department of Correction. The defendant was arrested as a part of a larger investigation that Immigrations and Customs Enforcement (“ICE”) and Homeland Security Investigations (“HSI”) were conducting into narcotics distribution. On appeal, the defendant argues that: (1) the trial court erred when it failed to instruct the jury as to the lesser-included offense of facilitation; (2) the State must prove beyond a reasonable doubt that the defendant knowingly possessed the amount of marijuana in question; (3) the trial court erred when it failed to instruct the jury that the defendant must knowingly possess certain amounts of marijuana; (4) the evidence was insufficient to support his conviction; (5) the trial court erred when it failed to grant the defendant’s motion to suppress; and (6) the trial court improperly sentenced the defendant to the maximum sentence for a Range I offender. After a thorough review of the record we conclude that facilitation was properly omitted as a jury instruction, that the “knowing” mens rea requirement does not apply to the amount of marijuana, the evidence was sufficient to support the defendant’s conviction, the trial court did not err in denying the motion to suppress, and that the defendant was properly sentenced to the maximum term of incarceration.

Petitioner, Aso Hassan Nejad, was convicted by a jury of conspiracy to commit first degree murder and sentenced by the trial court to 25 years’ incarceration. This court affirmed Petitioner’s conviction and sentence on appeal. State v. Aso Hassan Nejad a.k.a. Diako Nejad and Ako Hassan Nejad, No. M2009-00481-CCA-R3-CD, 2010 WL 3562015 (Tenn. Crim. App., Sept. 14, 2010), perm. app. denied (Tenn., Feb. 17, 2011). Petitioner now appeals the post-conviction court’s denial of his petition for post-conviction relief following an evidentiary hearing. Petitioner asserts that he was denied the effective assistance of counsel. Finding no error, we affirm the judgment of the post-conviction court.

The petitioner, David Lynn Smith, appeals the denial of his petition for post-conviction relief. The petitioner was convicted of second degree murder and is currently serving a sentence of twenty-four years in the Department of Correction. On appeal, he contends that the denial of his petition was error because he was denied his right to the effective assistance of counsel. Specifically, he contends that trial counsel was ineffective by: (1) failing to adequately prepare the petitioner to testify at trial; and (2) failing to investigate and interview an alibi witness. The petitioner further argues that the post-conviction court committed reversible error by refusing to exclude trial counsel from the post-conviction proceedings pursuant to Rule 615 of the Tennessee Rules of Evidence. Following review of the record and applicable law, we conclude that the petitioner was not denied his right to the effective assistance of counsel, and no Rule 615 violation was established. Therefore, we conclude that the petition was properly denied and affirm the judgment of the post-conviction court.

A Knox County Criminal Court Jury convicted the appellant, Travei Pryor, of eleven counts of aggravated kidnapping, a Class B felony; four counts of aggravated robbery, a Class B felony; four counts of aggravated burglary, a Class C felony, one count of employing a firearm during the commission of a dangerous felony and one count of possessing a firearm during the commission of a dangerous felony, Class C felonies; and one count of criminal impersonation, a Class B misdemeanor. After a sentencing hearing, he received an effective twelve-year sentence. On appeal, the appellant contends that the evidence is insufficient to support his convictions for employing/possessing a firearm during the commission of a dangerous felony and that the trial court committed reversible error by failing to instruct the jury as provided by State v. White, 362 S.W.3d 559 (Tenn. 2012). Based upon the oral arguments, the record, and the parties’ briefs, we conclude that the trial court’s failure to instruct the jury pursuant to White constitutes reversible error. Therefore, the appellant’s eleven convictions for aggravated kidnapping must be reversed and the case remanded to the trial court for a new trial as to those offenses. The appellant’s remaining convictions are affirmed. However, upon remand, the trial court is to merge the appellant’s aggravated robbery convictions in counts 7 and 8 and counts 9 and 10 and enter single judgments of conviction for those offenses.

A surgical pathology group filed this action in chancery court, claiming that the Med violated its own rules and acted arbitrarily and capriciously by failing to award the petitioner with a contract after a lengthy request for proposals process. The petition stated that the chancery court had subject matter jurisdiction over the matter pursuant to the statutes governing petitions for certiorari. The trial court granted the Med’s motion to dismiss for numerous reasons, including lack of jurisdiction. We find that the petition was not subject to dismissal for lack of subject matter jurisdiction, and we reverse the trial court’s finding to the contrary. However, due to the petitioner’s failure to appeal the trial court’s alternative grounds for dismissal, we find it unnecessary to consider the issues raised on appeal, and we otherwise affirm the order of dismissal.

A Hamblen County jury convicted Gevon Cortez Patton of especially aggravated kidnapping and criminally negligent homicide. The trial court sentenced him to an effective sentence of twenty-five years in the Tennessee Department of Correction. On appeal, appellant argues that the evidence was insufficient to support his convictions, that the trial court erred in admitting into evidence the transcript of appellant’s juvenile court transfer hearing, that the trial court erred by forcing appellant’s brother to testify and then declaring him unavailable when he refused to testify, that the trial court erred by admitting an exhibit into evidence when the State had not proven the chain of custody, and that the trial court erred in its sentencing of appellant. Following our review, we affirm the judgments of the trial court.

The Defendant-Appellant, James Melton, appeals the trial court’s revocation of his probation and reinstatement of his original six-year sentence in the Department of Correction. On appeal, Melton argues that the trial court based its decision on improper evidence and refused to admit proper evidence. The State responds that there is substantial evidence in the record to support the trial court’s order of revocation. Upon our review, we affirm the judgment of the trial court.

A doctor who became the subject of disciplinary proceedings by the Tennessee Medical Examiners Board filed a complaint for legal malpractice against the attorney who had represented him in those proceedings. The doctor asserted that the Board suspended his medical license for one year as a result of numerous acts of professional negligence by the attorney. The attorney filed a motion for summary judgment, denying that he was guilty of any professional negligence and contending that in any case, the doctor’s complaint was barred by the one-year statute of limitations for legal malpractice. The trial court granted partial summary judgment to the attorney on the basis of the statute of limitations. The court ruled that the doctor suffered a legally cognizable injury when the attorney failed to disclose a list of proposed witnesses to the Administrative Law Judge assigned to conduct the evidentiary hearing, which was more than one year earlier than the doctor’s filing of his legal malpractice complaint. The court accordingly held that the attorney could not be held liable for his failure to disclose the witnesses, or for anyother acts that occurred more than one year prior to the filing of the malpractice complaint. The court certified its judgment as final for purposes of appeal under Tenn. R. Civ. P. 54.02. We affirm.

The petitioner, Kristi Kimbro, pled guilty to second degree murder and was sentenced to thirty-seven years in the Tennessee Department of Correction. Subsequently, she filed a petition for writ of habeas corpus, alleging that her sentence was void. The habeas corpus court denied the petition, and the petitioner now appeals. Upon review, we affirm the judgment of the habeas corpus court.

The trial court dismissed Appellant’s complaint for lack of prosecution. Finding no abuse of discretion, we affirm.

The Petitioner, Richard Price, appeals as of right from the Shelby County Criminal Court’s dismissal of his petition for post-conviction relief. The Petitioner contends that his trial counsel was ineffective (1) for failing to communicate a plea offer from the State; and (2) for failing to request a curative jury instruction after a police officer testified that he “attempted to talk to” the Petitioner about the offense. Following our review, we affirm the judgment of the post-conviction court.

This is a condemnation case in which the State of Tennessee Department of Transportation acquired 20.93 acres of a 46.813 parcel of land by eminent domain for the purpose of constructing a highway. The jury awarded the landowner money for the value of the land acquired, the improvements on the land (including interior roadsand culverts), and incidental damages to the remainder of the property not acquired by the State. The trial court suggested an additur and also awarded the landowner discretionary costs. The State appeals the trial court’s award of an additur and discretionary costs. We have determined that the evidence does not preponderate against the trial court’s suggestion of additur on the issues of incidental damages and interior roads; however, we find the evidence preponderates against the court’s additur with respect to culverts. We also find the trial court erred in assessing discretionary costs against the State.

This post-divorce appeal concerns the equitable division of property between the Parties. Following the grant of the request for divorce, the trial court credited Husband for separate property he contributed to the marital residence to equalize the overall division of the property. Wife appeals. We affirm the decision of the trial court.

Bank made a loan to an individual who owned real property and obtained a deed of trust on the property securing the loan. Bank recorded the deed of trust in the wrong county. A few years later Second Bank obtained two judgment liens and properly registered them in the correct county. Bank later realized its error and registered its deed of trust in the correct county but was by that time in the junior creditor position. Bank filed a complaint seeking equitable subrogation in an effort to obtain the prioritycreditor position and get placed ahead of Second Bank, which had no security interest in the property at issue, but which had filed its liens first. The trial court denied Bank this relief after balancing the equities of the parties. We affirm.

A Humphreys County Circuit Court Jury convicted the appellant, Sharron Joy Mayberry, of simple possession of a Schedule III controlled substance, a Class A misdemeanor, and the trial court sentenced her to eleven months, twenty-nine days suspended to probation and community service. On appeal, the appellant contends that the trial court erred by denying her motion to suppress evidence, that the trial court erred by not giving a missing evidence jury instruction, and that the evidence is insufficient to support the conviction. Based upon the record and the parties’ briefs, we affirm the judgment of the trial court.

An employee sustained a compensable injury. The trial court ruled that the employee’s partial disability award should be apportioned to the arm. The employee has appealed, asserting that the award should have been apportioned to his thumb. 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 in accordance with Tennessee Supreme Court Rule 51. We affirm the judgment.

This is a breach of contract case stemming from a commercial lease between Plaintiff Landlord and Defendant Tenants. Beginning in August 2011, Defendants failed to make rent payments in violation of their lease with Plaintiff. Plaintiff subsequently filed this lawsuit seeking damages specified in the lease. In response, Defendants raised the affirmative defense of unclean hands, contending that Plaintiff breached the lease first by objecting to and/or interfering with Defendants’ right under the lease to sublease the property without Plaintiff’s consent. The trial court granted summary judgment to Plaintiff, finding that Defendants failed to perform under the lease by failing to pay rent, and finding no genuine issue of material fact regarding any allegation that Plaintiff interfered with Defendant’s ability to sublease the property. The Defendants argue that summary judgment was inappropriate because there exists a genuine issue of material fact regarding whether Bayrock breached the lease first by interfering with Defendants’ right to sublease. We disagree and affirm the trial court’s grant of summary judgment to Plaintiff.

I concur with the majority opinion. However, I respectfully disagree with the standard of review followed by the majority regarding judicial diversion. I agree with the reasoning set forth in State v. Kiara Tashawn King, No. M2012-00236-CCA-R3-CD, 2013 WL793588, at *7 (Tenn. Crim. App. Mar. 4, 2013), perm. app. granted (Tenn. Aug. 14, 2013), that after Bise, Caudle, and Pollard, portions of Parker, Electroplating, and their progeny in which this court reversed a trial court’s decision to deny judicial diversion merely because the trial court failed to expressly consider one or more of the seven legally-relevant factors (or merely because it failed to specify why some factors outweighed others) can no longer be considered governing law.

A real estate developer entered an agreement with the Town of Chapel Hill to purchase sewer and water taps in exchange for the Town’s extension of a sewer line to the developer’s property. The developer paid the money and the Town extended the line, as agreed. Developer later lost the property through foreclosure before development occurred. When the property was sold to a third party, the Town transferred the sewer and water taps to the purchasers. The developer filed a complaint alleging the Town breached the agreement by transferring taps that belonged to the developer to the third party purchasers. The Town denied it breached the agreement and moved for summary judgment. The trial court granted the Town’s motion for summary judgment and the developer appealed. We affirm. The agreement evidences the parties’ intention that the sewer and water taps were to be used in connection with the development of the property the developer owned when the agreement was executed. When the developer lost the property through foreclosure, the developer had no more interest in the taps.

This appeal arises out of an inmate’s allegedly improper early release from jail. Stanley Walker (“Walker”), alleging that he was improperly released early from jail because the authorities did not want to pay for his medical care, sued Bradley County and Capt. Gabriel Thomas (“the Defendants”) in the Circuit Court for Bradley County (“the Trial Court”). The Trial Court dismissed certain of Walker’s claims for failure to state a claim and ultimately granted summary judgment for the Defendants on the remaining claim. Walker timely appealed. We hold, inter alia, that Walker has no private right of action for being released early from jail, and we affirm the judgment of the Trial Court in its entirety.

The appellant, Curteis Benjamin Arzon, pled guilty in the Montgomery County Circuit Court to two counts of aggravated burglary. The trial court sentenced the appellant to four years in the Tennessee Department of Correction for each offense. On appeal, the appellant challenges the trial court’s denial of alternative sentencing. Upon review, we affirm the judgments of the trial court.

Plaintiffs filed suit to recover income taxes paid under protest pursuant to Tennessee’s Hall Income Tax. At issue is a “Special Dividend” Plaintiffs received that was classified by the corporation for income tax purposes as a return of “paid-in capital.” Plaintiffs contend the Special Dividend was exempt because the Hall Income Tax states, in pertinent part, that “no distribution of capital shall be taxed as income under this chapter, and no distribution of surplus by way of stock dividend shall be taxable in the year such distribution is made; but all other distributions out of earned surplus shall be taxed as income when and in whatever manner made, regardless of when such surplus was earned[.]” Tenn. Code Ann. § 67-2-104(e)(7) (2011). The trial court ruled in favor of Plaintiffs based upon a finding that “[t]he Special Dividend was not a leveraged dividend and as such the reduction in book value could have onlycome through a return of capital distribution.” We have determined the mere fact the dividend was not a leveraged dividend is not sufficient to prove the dividend was exempt from the Tennessee Hall Income Tax. To qualify for the exemption, Plaintiffs had the burden to prove the Special Dividend was paid out of capital. See Tenn. Code Ann. § 67-2-104(e)(7). We, therefore, reverse and remand for entry of judgment in favor of the Department of Revenue and for other proceedings consistent with this opinion.

The Petitioner filed a petition for post-conviction relief in the Bedford County Circuit Court, seeking relief from his convictions for selling less than one-half gram of cocaine, delivering less than one-half gram of cocaine, possessing one-half gram or more of cocaine with intent to sell, and possessing one-half gram or more of cocaine with intent to deliver and resulting effective thirty-year sentence. In the petition, the Petitioner claimed that he received the ineffective assistance of counsel at trial and on appeal. After an evidentiary hearing, the post-conviction court concluded that the Petitioner did not receive the ineffective assistance of counsel but ruled sua sponte that he was entitled to a delayed appeal in order for this court to determine whether his effective thirty-year sentence was excessive. After a review of the record and the parties’ briefs, we affirm the post-conviction court’s denial of the petition for post-conviction relief but reverse the court’s granting the Petitioner a delayed appeal.