APPELLATE COURT OPINIONS

This appeal is from the General Sessions Court of Roane County. It is the opinion of this Court that the appeal is premature as there is no final judgment as provided in the applicable rules. It is therefore ORDERED and ADJUDGED by this Court that the appeal is dismissed for lack of jurisdiction. Costs on appeal are taxed to the Appellant, Brett D. Stokes, and his surety, for which execution may issue, if necessary.

This appeal involves an arbitration agreement that was executed when a patient was admitted to a nursing home. The arbitration agreement was signed by the patient’s sister, who had presented a power of attorney document to the admissions staff that designated her as the patient’s attorney-in-fact. The patient’s representative in this lawsuit contends that the patient was incompetent when he executed the power of attorney document, and therefore, the sister lacked authority to sign the arbitration agreement on his behalf. The trial court found by clear and convincing evidence that the patient was incompetent when he signed  the document and denied the defendants’ motion to compel arbitration. We affirm and remand.

Plaintiff in shareholder derivative action appeals the dismissal of his suit alleging breaches of fiduciary duty and other misconduct, including insider trading, by current and former officers and directors of corporation. Plaintiff filed suit without first making demand on the board of directors of the corporation that the directors initiate the lawsuit. Defendants moved to dismiss the suit on the ground that plaintiff failed to allege with requisite particularity that such demand would have been futile. We affirm the dismissal of the action.

This appeal involves a home construction dispute between an LLC contractor and the homeowners. The contractor entered into a written contract with the homeowners for the construction of a 6000 square foot home. Upon the relationship between the parties becoming strained, the homeowners claim the contractor told them to find another builder. The contractor contends it was fired from the project. The instant action was commenced by the contractor to enforce a lien. The trial court found in favor of the contractor. The homeowners appeal. We affirm.

This case arises from the grant of a Tennessee Rule of Civil Procedure 12 motion to dismiss, whereby the trial court dismissed one of the party-defendants from this lawsuit for lack of personal jurisdiction. Specifically, the trial court determined that: (1) the Appellants had failed to serve process on the Appellee; (2) that neither the statute of limitations nor the statute of repose operated to save the Appellants’ cause of action; and (3) that Appellants were not entitled to Tennessee Rule of Civil Procedure 60 relief on grounds of fraud or misrepresentation. Discerning no error, we affirm and remand for further proceedings.

I respectfully dissent from the Majority’s decision in this case. The Majority found that the Trial Court “did not err in finding that Wise Construction, LLC was the contracting party....” I believe the evidence and Tennessee law shows that John S. Wise, III rather than Wise Construction, LLC was the contracting party, and I would so hold.

In this declaratory judgment action, the parties sought interpretation of a real estate purchase contract. The contract between the buyer and the seller provided for the assignment of all leases on the property and proration of rents to the buyer. The parties disputed whether these provisions contemplated a separate agreement between the seller and a third party. At the behest of the parties, the trial court construed both agreements and granted summary judgment to the buyer. On appeal, we raise, sua sponte, the question of whether all necessary parties were before the trial court pursuant to Tenn. Code Ann. § 29-14-107(a) and Tenn. R. Civ. P. 19. After concluding that all necessary parties were not included in this action, we vacate the judgment of the trial court and remand for further proceedings consistent with this opinion.

This case arose over the construction of a home for plaintiffs. Plaintiffs sued the construction company and a bank and several individuals. The Trial Court resolved the issues as to defendants, except Mark Rodriguez, prior to trial. The plaintiffs' case against Rodriguez was tried by the Trial Court who directed a verdict at the end of plaintiffs' proof. Plaintiffs appealed to this Court. Plaintiffs insisted that material evidence established a violation of the Consumer Protection Act by defendant, and the directed verdict should be reversed. Upon review of the evidentiary record, we conclude that the Trial Judge properly directed a verdict in favor of the defendant, and we affirm the Trial Court's Judgment.

Following a jury trial, the Defendant, Elgene Porter aka “Twin,” was convicted of conspiracy to commit aggravated burglary, aggravated burglary, attempted aggravated robbery, aggravated rape, and two counts of aggravated kidnapping. For these convictions, he received an effective sentence of forty-two years at 100% in the Department of Correction. In this direct appeal, the Defendant contends that: (1) the trial court erred in denying his motion to suppress statements he made to police; (2) the trial court erred in failing to immediately remove a juror once a potential conflict was identified; (3) the trial court erred in setting the length of his sentences; and (4) the trial court erred in ordering partial consecutive sentences. After our review of the record and the applicable authorities, we affirm the judgments of the trial court.

In this workers’ compensation appeal, the employee alleged a work-related incident aggravated a pre-existing back condition and that he required surgery as a result of the injury. His employer denied the claim, contending that the surgery was for treatment of a preexisting condition and that the work related incident did not advance the pre-existing condition. The trial court found for the employee and awarded 20% permanent partial disability benefits. The employer appealed. We affirm the judgment.

The Petitioner, John Griggs, appeals the Shelby County Criminal Court’s denial of post-conviction relief from his convictions for aggravated kidnapping, kidnapping, aggravated burglary, aggravated assault, and attempted rape, for which he received an effective sentence of eleven years. On appeal, the Petitioner contends that his guilty pleas were not entered voluntarily and knowingly because he was not informed of his right against compulsory self-incrimination. We affirm the judgment of the trial court.

Pursuant to Rule 9 of the Tennessee Rules of Appellate Procedure, the State appeals the trial court’s order denying jury instructions on lesser included offenses at the Defendant Gussie Willis Vann’s retrial for felony murder. See T.C.A. §39-13-202(a)(2) (1991). The Defendant was originally convicted by a McMinn County jury of felony murder committed in the perpetration of aggravated rape and two counts of incest. He was sentenced to death plus six years’ incarceration. In affirming his convictions on direct appeal, this court, see State v. Gussie Willis Vann, No. 03C01-9602-CC-00066, 1997 WL 309320 (Tenn. Crim. App., at Knoxville, June 10, 1997), and the Tennessee Supreme Court, see State v. Vann, 976 S.W.2d 93 (Tenn. 1998), rejected the Defendant’s claim that the trial court erred by failing to instruct the jury on the lesser included offenses of felony murder. The Defendant subsequently filed a petition for post-conviction relief, and the post-conviction court ordered a new trial on grounds unrelated to the issue presented in this appeal. Prior to retrial, the Defendant moved to dismiss his indictment and bar instructions on the lesser included offenses of felony murder arguing, among other things, (1) that principles of double jeopardy, collateral estoppel, and judicial estoppel precluded the State from prosecuting the Defendant on any lesser included offense of felony murder because the “explicit statements” of both this court and the Tennessee Supreme Court “on direct appeal that the trial record was ‘devoid of evidence’ of lesser included offenses were factual determinations, necessary to valid final judgments, from which the government is prohibited from seeking an inconsistent determination” and (2) that “the [original] trial judge’s refusal to instruct on such lesser included offenses was a qualitative determination of the evidence, tantamount to an acquittal and triggering traditional double jeopardy and res judicata [as] to those charges.”Following a hearing, the trial court agreed in part with the Defendant and actually barred retrial on any lesser included offenses of felony murder. The State sought and we granted Rule 9 review to determine “whether constitutional double jeopardy protections bar at the trial the inclusion of lesser included offenses of first degree felony murder.” Upon our review, we reverse the decision of the trial court and remand for proceedings consistent with this opinion.

Following a jury trial, the Petitioner, Bobby Joe Rollins, was convicted of aggravated robbery, a Class B felony, and sentenced as a Range III, persistent offender to twenty-eight years. See Tenn. Code Ann. § 39-13-402 (aggravated robbery defined). This Court affirmed his conviction and sentence on direct appeal. See State v. Bobby Joe Rollins, No. M2008-00284-CCA-R3-CD, 2008 WL 5427733 (Tenn. Crim. App., Nashville, Dec. 31, 2008) (mem.), perm. to appeal dismissed, (Tenn. Mar. 23, 2009). The Petitioner filed a timely petition for post-conviction relief and, after a hearing, the post-conviction court denied relief. In this appeal, the Petitioner claims that he was denied effective assistance of counsel because: (1) Trial Counsel misadvised the Petitioner with respect to whether he should testify at his trial; (2) Trial Counsel failed to undertake any meaningful trial preparations with the Petitioner; and (3) Trial Counsel failed to object and request a mistrial when a witness stated that the Petitioner had been in “the pen.” After our review, we affirm the post-conviction court’s denial of relief.

The Petitioner, Mark Alan Deakins, appeals pro se the Lauderdale County Circuit Court’s summary dismissal of his petition for habeas corpus relief from his conviction for especially aggravated sexual exploitation of a minor, a Class B felony. The Petitioner contends that the trial court erred by finding that the judgment was not void and by dismissing his petition without an  evidentiary hearing and without appointment of counsel. We affirm the judgment of the trial court.

The order from which the appellant Donna Angela Ross seeks to appeal was entered on Monday, August 2, 2010. A notice of appeal was filed by the appellant on Friday, September 3, 2010, the 32nd day following the entry of the trial court’s order. Because the notice of appeal was not filed timely, we have no jurisdiction to consider this appeal. Accordingly, this appeal is dismissed.

This is a direct appeal from a guilty plea pursuant to Rule 37(b)(2) of the Tennessee Rules of Criminal Procedure. The Defendant, James F. Mason, pleaded guilty to possession of methamphetamine with the intent to deliver. As part of his plea agreement, the Defendant attempted to reserve a certified question of law, challenging the trial court’s denial of his motion to suppress the evidence seized during the search of his residence. Because the Defendant has failed to properly certify his issue for review, the appeal is dismissed.

Following a jury trial, the Defendant, Reginald Maurice Adkins, was convicted of first degree felony murder, see Tennessee Code Annotated section 39-13-302, and attempted especially aggravated robbery, a Class B felony, see Tennessee Code Annotated sections 39-12-107(a), -13-403(b). In this direct appeal, the Defendant contends that the State presented insufficient evidence to convict him of either offense. After our review, we affirm the judgments of the trial court.

Plaintiff sued Haywood County and a Haywood County sheriff’s deputy after she was sexually harassed by the deputy. Following a bench trial, the trial court entered judgment in favor of the Plaintiff against Haywood County and against the deputy. Haywood County appeals, challenging the finding of liability and the amount of damages awarded against it.  We affirm.

The appellant, Douglas Boruff, appeals the Blount County Circuit Court’s denial of his motion to discharge a fine that the trial court imposed as part of his punishment for a prior conviction. Based upon the record and the parties’ briefs, the appellant’s appeal is dismissed.

The Defendant, Scotty Mack Griffith, pled guilty to promotion of the manufacture of methamphetamine, a Class D felony, and to possession of methamphetamine, a Class A misdemeanor. See T.C.A. §§ 39-17-433, 39-17-418 (2010). He was sentenced as a Range II, multiple offender to six years’ confinement for the promotion conviction and to eleven months, twenty-nine days’ confinement for the possession conviction, to be served concurrently. On appeal, he contends that the trial court erred by imposing a sentence of full confinement. We affirm the judgments of the trial court.

The Petitioner, Kenneth Alan Steele, filed a petition for a writ of error coram nobis, alleging that because of newly discovered DNA evidence, his convictions should be vacated and/or he should be granted a new trial to present evidence of a third-party perpetrator. On appeal, the Petitioner argues that the trial court erred by dismissing his petition without a hearing and that it applied the wrong standard in making its ruling. We agree that the trial court used the wrong standard; nevertheless, we conclude that the trial court did not err in dismissing the petition. Accordingly, we affirm the judgment of the trial court.

Parties who pled guilty to violation of a Nolensville ordinance argued that the costs assessed in their cases violated Article VI, Section 14 of the Tennessee Constitution. The Nolensville municipal court found against the parties. On appeal, the circuit court also found against the parties. On further appeal, we affirm the lower courts’ decisions against one party and affirm in part and reverse in part the lower courts’ decisions against the other party.

The defendant, Eddie H. Pittman, was convicted by a Madison County Circuit Court jury of theft of property valued between $500-$1000, a Class E felony, and was sentenced as a career offender to six years in the Department of Correction. On appeal, he challenges the sufficiency of the evidence regarding the value of the stolen goods. After review, we affirm the judgment of the trial court.

I concur in the majority opinion. I respectfully express my view that the trial court’s “ would not have changed the results” formulation does not necessarily equate to the application of a wrong standard. As the majority opinion notes, Mixon and Vasques formulate the standard for establishing entitlement to coram nobis relief as when the petitioner shows that the new evidence “may have” resulted in a different judgment. See State v. Vasques, 221 S.W.3d 514, 527 (Tenn. 2007); State v. Mixon, 983 S.W.3d 661, 672 (Tenn. 1999). One might view the trial court’s formulation in the present case as merely stating the correct standard in the negative. Certainly, the more precise formulation of the opposite of “may have” is “could not have” or “cannot have,” but still the court may have correctly determined that no possibility existed that the result of trial may have been different with the new evidence at play. Obviously, the use of the Mixon-Vasques language would be preferable.

This is an appeal from the grant of summary judgment in favor of Appellee. Appellant obtained a credit card from Appellee’s predecessor in interest, and defaulted on payment of the debt. Appellee brought suit to recover the debt, and the trial court granted summary judgment to Appellee. Appellant appeals, arguing that there is a dispute of fact as to whether Appellee is a lawful successor in interest, and also asserting that the trial court erred in denying Appellant’s  request to have certain documents included in the record. Affirmed.