APPELLATE COURT OPINIONS

I agree completely with the majority that return of “proof of service to the court” 412 days after process was issued by the trial court clerk is hardly a “prompt[]” return of proof of service. I also agree – as I must – that such a delay in the return of proof of service violates the clear mandate of the first sentence of Tenn. R. Civ. P. 4.03(1): “The person serving the summons shall promptly make proof of service to the court . . .” (Emphasis added.)

The defendant, Brandon L. Smith, pled guilty to voluntary manslaughter and agreed to be sentenced as a Range III, persistent offender. After a sentencing hearing, the trial court sentenced the defendant to thirteen years and six months to be served in the Tennessee Department of Correction. On appeal, the defendant contends that the trial court erred when it: (1) relied upon hearsay statements contained in the presentence report at sentencing; and (2) denied him an alternative sentence. Following review of the record, we conclude that the defendant’s first claim has been waived and his second claim is moot. We affirm accordingly.

Defendant, Carol Ann Tully, pled nolo contendere to DUI, first offense, and properly reserved a certified question of law to appeal pursuant to Tennessee Rule of Criminal Procedure 37(b)(2), after her motion to suppress evidence was denied. Defendant asserts that there was not a valid basis for the traffic stop which directly led to her arrest and that she was therefore subjected to an unconstitutional stop and seizure. After a review of the record, we affirm the judgment of the trial court.
 

This is a grandparent visitation case. The child at issue was adjudicated dependent and neglected; the appellant paternal great-grandmother was awarded legal custody. Months later, the child’s mother died. The appellee maternal grandmother then filed a petition in juvenile court seeking both custody and alternatively grandparent visitation. The order denying the grandmother’s petition was appealed to the circuit court for a de novo hearing. The circuit court denied the grandmother’s petition for custody, but awarded grandparent visitation. The custodian great-grandmother now appeals. We reverse and dismiss the grandmother’s petition.
 

The Petitioner, Asata D. Lowe, was convicted by a Blount County jury of two counts of first degree premeditated murder, two counts of felony murder in the perpetration of a robbery, two counts of felony murder in the perpetration of a theft, one count of especially aggravated robbery, and one count of theft. Lowe subsequently filed a petition for a writ of habeas corpus in the Blount County Circuit Court, which was dismissed after a hearing. On appeal, Lowe argues that the judgments are void because numerous constitutional errors deprived the trial court of authority to try and sentence him. He asserts that his right to a fair trial was violated by the State’s failure to disclose evidence and the trial court’s failure to instruct the jury properly, that his Fourth Amendment rights were violated by the seizure and admission at trial of evidence, that his right to the effective assistance of counsel was violated by his counsel’s performance at trial, and that his right against double jeopardy and due process rights were violated by multiplicitous indictments. Upon review, we affirm the judgment of the habeas court.

This is an appeal of an order setting aside a default judgment. The plaintiff obtained a default judgment against the defendant. The defendant then filed a motion to set aside the default judgment, which was granted. The order setting aside the default judgment was certified as final pursuant to Rule 54.02 of the Tennessee Rules of Civil Procedure. The plaintiff now appeals. We find that Rule 54.02 certification was improvidently granted, and we dismiss the appeal for lack of appellate jurisdiction.

Mother appeals from the trial court’s post-divorce determination that a substantial and material change of circumstances occurred that warranted a modification of the parenting plan and the designation of Father as the primary residential parent of their children. Mother also appeals the termination of her alimony payments and an award of attorney’s fees to Father. We affirm the finding that a substantialand material change of circumstance occurred and that it is in the best interests of the children that Father be the primary residential parent. We affirm the termination of alimony to Mother and the award of attorney’s fees to Father.
 

The petitioner, Johnny J. Peterson, appeals the post-conviction court’s denial of his petition for post-conviction relief from his first degree murder and attempted first degree murder convictions. On appeal, he argues that he received the ineffective assistance of counsel. After review, we affirm the denial of the petition.

I concur in the results reached in the majority opinion. I respectfully disagree, though, with the reasoning used. I believe the evidence fairly raised the issue of self-defense, thereby justifying an instruction to the jury. I also believe that under the facts in this case, selfdefense was not inconsistent with a claim of reckless homicide. I, however, am not persuaded that counsel performed deficiently nor that prejudice has been shown.

Jawad Salman (“the Petitioner”) filed a motion to withdraw his guilty plea for conspiracy to manufacture less than one hundred plants of marijuana, a D felony. The trial court denied the motion, and final judgment was entered. The Petitioner timely appealed, asserting that his guilty plea was void because of the failure to reduce the Petitioner’s guilty plea to a signed writing and that the trial court erred by not allowing the Petitioner to withdraw his guilty plea. We affirm the trial court’s judgment pursuant to Rule 20 of the Rules of the Court of Criminal Appeals.

Defendant, Joseph L. Lands, pled guilty to vehicular homicide by intoxication, and he intended, pursuant to Tennessee Rule of Criminal Procedure 37(b)(2), to reserve the following certified question of law for appeal: “Whether proof of actual attempts by law enforcement officers to obtain a lawful warrant must be placed on the record before the court may find that exigent circumstances exist, such that the warrant requirement can be excused?” After review of the entire record, we conclude this appeal must be dismissed.

The defendant, Vernon Motley, was convicted by a Shelby County Criminal Court jury of first degree premeditated murder and sentenced to life imprisonment. On appeal, he argues that: (1) the trial court gave an improper jury instruction on premeditation; (2) the trial court erred when it did not grant the defendant’s motion for a mistrial based on a Brady violation; (3) the trial court erred when it allowed testimony of the victim’s dying declaration to include information concerning the motive for the killing; and (4) the State’s argument during closing was improper and amounted to plain error. After review, we affirm the judgment of the trial court.

A residential property owner challenged the procedures used by a planning commission and city commission in granting a rezoning application submitted by two industrial companies. The companies asked that the zoning for 95.2 acres of land be changed from agricultural to special impact industrial for the purpose of developing a landfill to dispose of salt cake produced as a byproduct of their smelting businesses. The property owner also asserted that two of the commissioners had a conflict of interest and that their participation granting the application invalidated the procedure. The defendants filed a motion to dismiss and motion for judgment on the pleadings. The trial court granted the defendants’ motions after concluding the planning commission and city commission complied with the procedural requirements of Tenn. Code Ann. §§13-7-203(a) and 6-20-215 and that the two commissioners had no conflict of interest since they had no ownership interest in the rezoning applicants. We affirm the trial court’s judgment dismissing the property owner’s complaint.
 

In this post-divorce action, the father appeals the entry of a default judgment modifying the parties’ parenting plan for their minor child and the denial of his Tenn. R. Civ. P. 60.02 motion to set aside the default judgment. The father was personally served with the petition to modify the parenting plan at work but did not file an answer. He had changed residences after the divorce but did not provide the mother or the court with his new address after the petition was served. Over two months later, the mother filed a motion for default judgment, serving the father by mail at his last known address. The trial court granted the motion and entered a default judgment. Father filed a Rule 60.02 motion for relief, which was denied. This appeal followed. Finding no abuse of discretion, we affirm.

The petitioner, Frank Warren Currah, appeals the post-conviction court’s denial of his petition for post-conviction relief from his convictions of sexual exploitation of a minor and aggravated stalking and resulting effective sentence of eight years in confinement. On appeal, the petitioner contends that he received the ineffective assistance of counsel. Based upon the record and the parties’ briefs, we affirm the judgment of the post-conviction court.

This is a personal injury action filed by Oscar H. Vaughn (“the Plaintiff”) against James D. Morton (“the Deceased”) that arose out of an automobile accident. The Deceased died within a year of the accident. The Deceased’s insurer, acting pursuant to its rights under the policy to “defend” an action against its insured, filed a motion to dismiss asserting that the only proper defendant was the personal representative of the Deceased and that the statute of limitations had expired prior to any attempt to make the representative a party to this litigation. The trial court denied the Plaintiff’s motion to amend to add the personal representative as a defendant, which motion was filed after the expiration of the statute of limitations. The trial court granted the insurer’s motion to dismiss. The Plaintiff appeals. We affirm.

A Montgomery County Circuit Court Jury convicted the appellant, Henry T. Johnson, of first degree premeditated murder and aggravated burglary. The trial court imposed concurrent sentences of life imprisonment in the Tennessee Department of Correction for the first degree murder conviction and three years for the aggravated burglary conviction. On appeal, the appellant challenges the sufficiency of the evidence sustaining his conviction for first degree murder, arguing that the State failed to prove premeditation. Upon review, we affirm the judgments of the trial court.
 

In this case, Kathryn M. Claiborne sought to set aside a quitclaim deed relating to property given to Larry W. Goldston. The trial court set aside the deed but awarded damages to Larry W. Goldston based upon his counterclaim for unjust enrichment. Kathryn M. Claiborne appeals. We affirm the judgment of the trial court as modified.

Appellant, Steven Thacker, appeals the revocation of his probation, claiming that the trial court abused its discretion by revoking his probation and ordering execution of the original sentence. Finding no error, we affirm the judgment of the trial court.
 

The petitioner, James Alton Campbell, appeals the partial denial of his petition for post-conviction relief. In this appeal, the petitioner asserts that he was denied the effective assistance of counsel at trial. Discerning no error, we affirm.
 

The parties’ Parenting Plan required that major decisions regarding religious upbringing be made jointly, and if no consensus could be reached, that the dispute be submitted to a mediator. Mother had the parties’ children baptized without Father’s knowledge or consent, and Father filed a petition for civil and criminal contempt against Mother. The trial court found Mother in civil contempt, but it dismissed the criminal contempt petition, apparently for insufficient notice. We reverse the trial court’s finding that Mother was in civil contempt, and its award of attorney fees to Father based upon the civil contempt finding. We also reverse the trial court’s dismissal of Father’s criminal contempt petition, and we remand for further criminal contempt proceedings.

A Williamson County Circuit Court jury convicted the defendant, Bo W. Prendergast, of one count of theft of property valued at over $10,000 but less than $60,000, see T.C.A. §§ 39-14-103, -105(4) (2006), and the trial court imposed a sentence of 15 years’ incarceration as a Range III, persistent offender to be served consecutively to a previously imposed sentence. On appeal, the defendant challenges the sufficiency of the evidence to support his conviction and urges this court to conclude that the trial court committed plain error by excluding a State’s witness’s felony convictions for use as impeachment. Discerning neither a paucity in the evidence nor that substantial justice requires consideration of the alleged error, we affirm the judgment of the trial court.

Appellee was granted a default judgment against Appellant in the general sessions court. More than five months after the entry of the default judgment, Appellant filed a Tennessee Rule of Civil Procedure 60.02 motion for relief from the general sessions court’s judgment. The general sessions court dismissed the motion on grounds that it was not timely filed and that the general sessions court, therefore, lacked jurisdiction to set aside its judgment. Appellant appealed to the circuit court. Thereafter, Appellant filed a petition for writ of error coram nobis, which was dismissed sua sponte by the circuit court. Appellant appeals. Because the writ of error coram nobis has long been abolished in the civil law, this filing had no legal effect; consequently, the trial court did not err in dismissing the writ. Affirmed and remanded.
 

A Montgomery County Circuit Court jury convicted the defendant, Rodney K. Glover, of conspiracy to commit aggravated burglary, aggravated burglary, conspiracy to commit theft of property valued at over $10,000 but less than $60,000, aggravated robbery, aggravated kidnapping, and theft of property valued at less than $500. At sentencing, the trial court imposed a total effective sentence of 50 years’ incarceration. On appeal, the defendant challenges the trial court’s imposition of sentences as to both the length and alignment of service. Discerning no error, we affirm the judgments of the trial court.
 

In this divorce appeal, husband challenges the trial court’s valuation of his business, the division of marital assets, and the allocation of the debt on the marital residence. Husband also argues that the trial court erred in the amount and length of the alimony award and in awarding attorneyfees to wife. We find that the trial court erred in changing its net valuation of the business, after a second hearing, from $200,000 to $280,000 based upon the updated status of Husband’s payments on the tax lien. As this change did not affect the trial court’s division of the marital estate or the alimony award, however, the error is harmless. In all other respects, we find no error in the trial court’s decision.