APPELLATE COURT OPINIONS

This appeal addresses an award of attorney fees to the attorney for a decedent’s estate for services rendered on appeal. The appellant administrator of the estate is also the estate’s attorney. The administrator/attorney’s final accounting was approved by the trial court, and two of the estate’s beneficiaries appealed. The appellate court affirmed the trial court’s approval of the final accounting. On remand, the administrator/attorney filed a motion for the approval of all attorney fees incurred in the administration of the estate, including attorney fees for services rendered in the first appeal. The trial court declined to approve the attorney fees incurred on appeal, holding that such fees may be awarded in the first instance only by the appellate court. The administrator/attorney now appeals. We reverse, concluding that attorney fees for the administrator/attorney’s services rendered on appeal constitute an administrative expense of the estate, and so the request for such fees must be made in the first instance in the trial court.

In this dispute concerning the use of real property located in a common interest community, we have concluded that summary judgment based on the amendments to the restrictive covenants was not appropriate. We also find that the new owner has the authority to act as developer.

The Petitioner, Charles Ray Harvey, appeals from the Scott County Circuit Court’s denial of his petition for post-conviction relief from his conviction of first degree murder, for which he is serving a life sentence. He contends that his trial attorneys failed to provide effective assistance because they did not advise him that accepting a guilty plea offer was in his best interest and did not accurately advise him of the unlikelihood that he would prevail at trial. Upon review, we affirm the judgment of the trial court.

This is a wrongful termination case. The plaintiff senior management employee of a public utility was passed over for the position of president of the utility. In the meantime, federal law enforcement authorities were investigating matters involving the utility, and federal officers interviewed the plaintiff employee. Subsequently, the new president of the utility eliminated the plaintiff’s job position and his employment was terminated. The plaintiff employee filed suit against the utility, alleging violation of Tennessee’s Public Protection Act, and against the new president of the utility, in his individual capacity, alleging tortious interference with his employment and conspiracy. The defendants filed a motion to dismiss for failure to state a claim. The trial court granted the motion, and the plaintiff employee appeals. We affirm.

James Antony Wilson, Sr. sued East Tennessee Human Resource Agency, Inc. (“ETHRA”) individually, and as next friend and Personal Representative of the Estate of Callie Irene Wilson, on behalf of himself and all wrongful death beneficiaries of Callie Irene Wilson, Deceased. This suit involves a fall and injuries suffered by Callie Irene Wilson (“Callie Wilson”) while ETHRA was in the process of transporting Callie Wilson to a dialysis appointment, and her death resulting from these injuries. After a trial, the Trial Court entered its order on July 29, 2010 finding and holding, inter alia, that the ETHRA driver acted appropriately and was not negligent. Mr. Wilson appeals to this Court. We find that the evidence in the record on appeal preponderates against the Trial Court’s finding that ETHRA’s employee, Mr. Clabo, was not negligent. We reverse, and remand this case to the Trial Court for a determination of comparative fault and damages.

The Petitioner, Dennis Wade Suttles, appeals from the judgment of the Knox County Criminal Court denying his petition for post-conviction relief. A Knox County Criminal Court jury convicted the Petitioner of premeditated first degree murder and sentenced him to death. The Tennessee Supreme Court affirmed the Petitioner’s conviction and sentence on direct appeal. State v. Suttles, 30 S.W.3d 252 (Tenn.), cert. denied, 531 U.S. 967 (2000). On appeal, the Petitioner challenges the effectiveness of his counsel’s representation before trial, during trial, and on direct appeal. The Petitioner also challenges the constitutionality of the death penalty. This court holds that the trial court did not err in finding that the Petitioner received the effective assistance of counsel at all stages of the case and that the Petitioner’s challenges against the death penalty are without merit. The judgment of the trial court denying post-conviction relief is affirmed.

Jenna Lauren Heath Milner (“Wife”) initiated this action by filing a complaint for divorce against her spouse, Derrick Brandon Milner (“Husband”). The only ground for divorce alleged is “T.C.A. § 36-4-101(5), conviction of a felony.” Husband filed an answer pro se which, in substance, admits that he has been convicted but states that the conviction is “a miscarriage of justice” and that his attorney “botched the trial . . . and botched the direct appeal as badly as the trial.” He alleges that he is continuing to challenge the conviction and “there is a great chance of having the case reversed.” Husband denied that a divorce should be granted and alleged that he still loves Wife and their child. Husband, who was incarcerated, testified at trial by telephone, although there is no transcript or statement of the evidence. The trial court declared the parties “divorced pursuant to T.C.A. § 36-4-101(5).”  Husband appeals, arguing, for the first time, that the statute is unconstitutional under the Tennessee Constitution, the United States Constitution, and the Georgia Constitution, the state in which he is incarcerated. The Tennessee Attorney General was served with a copy of Husband’s brief and has appeared in support of the constitutionality of the statute. We hold that any issue as to the constitutionality of Tenn. Code Ann. § 36-4-101(5)(2010) was waived by Husband’s failure to raise the issue in the trial court, and, pursuant to Court of Appeals Rule 10 , we affirm the judgment granting an absolute divorce.

A Bedford County jury convicted the Defendant, Christopher Terrell Robinson, of violating the Habitual Motor Vehicle Offender (“HMVO”) Act, evading arrest, and violating the light law. Subsequently, the Defendant also pled guilty to felony failure to appear for not appearing at his original court date. For all the Defendant’s convictions, the trial court sentenced him to an effective sentence of twelve years, to be served as a Range II offender at 60%. On appeal, the Defendant contends that: (1) the evidence is insufficient to sustain his conviction for violating the HMVO Act; and (2) his sentence is excessive because the trial court inappropriately ordered his sentences to run consecutively. After a thorough review of the record and applicable authorities, we affirm the trial court’s judgments.

Wife filed a complaint seeking a divorce and child support from Husband. Husband filed no answer or counterclaim, but caused to be served upon Wife a summons directing Wife to defend a civil action against her. Husband then filed and served upon Wife a notice of a hearing for default divorce. The trial court entered a Final Decree of Absolute Divorce awarding Husband a divorce based on inappropriate marital conduct and entered Husband’s proposed parenting plan designating Husband as the primary residential parent. Nearly a year later Wife filed a Rule 60.02 motion seeking to have the Final Decree set aside on the grounds of (1) mistake, inadvertence or surprise, (2) fraud, misrepresentation, and misconduct, and (3) the judgment was void. The trial court denied Wife’s Rule 60.02 motion, and Wife appeals. Because the Final Decree of Divorce was not void and because of the circumstances surrounding Wife’s motion, we affirm the trial court.

An inmate at the Turney Center Industrial Complex filed a petition for writ of certiorari seeking review of the decision of the Turney Center Disciplinary Board convicting him of the disciplinary offense of possession of “security threat group material.” Acting sua sponte, the Hickman County Chancery Court dismissed the petition for failure to exhaust his administrative remedies. We affirm.

Petitioner, Frankie Kelly McGowan, entered a best interest plea in Bedford County to one count of aggravated burglary and two counts of burglary in exchange for an effective ten-year sentence. The effective sentence was ordered to run consecutively to sentences in two other cases for which Petitioner was on parole at the time of the offenses. Subsequently, Petitioner sought  post-conviction relief on the basis of ineffective assistance of counsel and because his guilty plea was unknowingly and involuntarily entered. The post-conviction court dismissed the petition after a hearing. Petitioner has appealed the dismissal of his petition for post-conviction relief to this Court. After a review of the record, we conclude that Petitioner has failed to present clear and convincing evidence that his guilty plea was involuntarily or unknowingly entered or that he received ineffective assistance of counsel. Accordingly, the judgment of the post-conviction court is affirmed.

This is an appeal by Norman Lee Robinson from a summary judgment granted against him and in favor of his lender, Citizens Bank, and GMAC Mortgage, LLC, the assignee of Robinson’s secured note. Robinson filed this action against Citizens Bank and GMAC, as well as others, to stop what he alleged was a wrongful foreclosure. He also demanded compensatory and punitive damages. The substance of the action is that the defendants should not be permitted to require Robinson to pay into escrow, funds that had been improperly refunded to him. The trial court held that Robinson was in default and that the foreclosure was not wrongful because, despite some dispute as to certain facts, there was no genuine dispute concerning the facts material to the outcome of this case. We affirm.

This case stems from the divorce of Freda Michelle Humbard Miller (“Wife”) and Steven Dwayne Miller (“Husband”). The Trial Court, among other things, granted the parties a divorce, designated Wife the primary residential parent, and awarded Wife child support and alimony. Husband appeals, raising a number of issues. We hold that the Trial Court erred in setting child support without entering supporting worksheets in the record as required. We further hold that the Trial Court did not err as to the other issues. We vacate, in part, and, affirm, in part, and remand for the Trial Court to set child support utilizing the worksheets as required.

The Petitioner, Alanda D. Hayes, brought the present petition for habeas corpus relief in the Johnson County Criminal Court, challenging the legality of the sentences he received in five separate cases. The habeas corpus court dismissed the petition without a hearing. On appeal, the Petitioner contends that the habeas corpus court erred when it dismissed his petition because he was sentenced in contravention of the 1989 Sentencing Act and that, as such, his sentences are void. Having thoroughly reviewed the record and applicable authorities, we conclude the habeas corpus court properly dismissed the petition. We therefore affirm the habeas corpus court’s judgment.

Father appeals trial court finding of substantial and material change of circumstances and resulting modifications to parenting plan. Finding that the record does not support failure of parties to attempt mediation of parenting plan issues prior to seeking court intervention, the judgment is vacated and petition to modify parenting plan dismissed.

In this post-divorce proceeding, the father of the parties’ child seeks to reduce his child support obligation due to a decrease in his income, and each parent alleges the other is in contempt for various reasons. The trial court denied Father’s petition to reduce child support upon finding that Father was voluntarily underemployed. The trial court granted Mother’s petition to hold Father in contempt for failing to comply with the parenting plan and denied Father’s petition against Mother. Mother was awarded one-half of her attorney fees. Father appealed. We reverse the finding that Father was voluntarily underemployed and remand with instructions for the trial court to determine whether a significant variance exists in Father’s child support obligation based on his actual income without additional imputed income. If a significant variance exists, the trial court is to set Father’s child support obligation pursuant to the Guidelines. We also reverse the court’s finding that Father was in contempt, because the trial court did not specify a provision of the parenting plan Father allegedly violated and the evidence is insufficient to establish that any violation was willful.

This is a post-divorce modification of child custody case. The trial court modified custody upon its finding that a material change in circumstances had occurred such that primary residential custody with the Appellant Mother was no longer in the child’s best interest. The court granted primary residential custody to the Appellee Father and Mother appeals. Discerning no error, we affirm.

This appeal arises out of a suit to recover the balance on a past due account for an advertisement in a telephone directory. Defendant disputed the authenticity and admissibility of the documents submitted by plaintiff to establish an enforceable and valid contract. The trial court permitted the documents to be admitted and entered judgment for plaintiff. Defendant appeals, contending that the trial court erred in admitting the documents and in finding an enforceable contract. Finding no error, we affirm.

This appeal involves an election contest. The appellant was an unsuccessful candidate for mayor in a municipal election. After the election, the appellant filed this lawsuit seeking declaratory and injunctive relief and contesting the election. The trial court granted summary judgment to the defendants. We affirm.

We granted the defendant’s application for permission to appeal in this post-conviction proceeding to determine whether the defendant received ineffective assistance of counsel in conjunction with his guilty pleas to multiple sex offenses, because his counsel did not inform him about the mandatory lifetime community supervision consequence of some of his convictions. After a hearing, the post-conviction court denied relief upon its determination that the defendant’s legal representation was competent; the Court of Criminal Appeals affirmed. We hold that the defendant has demonstrated by clear and convincing proof that (1) his counsel’s performance fell below the objective standard of reasonableness because counsel did not advise him that, in addition to his effective ten-year sentence, a mandatory sentence of community supervision for life was a consequence of his guilty pleas; and (2) there was a reasonable probability that, but for counsel’s failure to properly inform him, the defendant would not have pled guilty and would have insisted on going to trial. We therefore reverse the judgment of the Court of Criminal Appeals and remand this matter to the original trial court for further proceedings consistent with this opinion.

The petitioner, Herbert N. Jackson, appeals the denial of his petition for writ of habeas corpus, which challenged his 2006 Madison County Circuit Court conviction of theft of property valued at $1,000 or more but less than $10,000. In this appeal, he claims that his sentence is illegal because the trial court failed to award him credit for the time he spent on community corrections and that his sentence has expired. Because the habeas corpus court erroneously concluded that the petitioner failed to state a cognizable claim for habeas corpus relief and because the petitioner has established entitlement to habeas corpus relief, the judgment of the habeas corpus court is reversed, and the case is remanded to the habeas corpus court for the entry of an order directing the trial court to amend the petitioner’s judgment to reflect credit for time actually served on community corrections. Further, because the petitioner has established that, accounting for a correct application of community corrections credit, his sentence has been served and has expired, the petitioner is entitled to immediate release.

The Defendant, Carlie D. Schoenthal, pled guilty to one count of driving under the influence (DUI), first offense, reserving a certified question of law for appellate review pursuant to Tennessee Rule of Criminal Procedure 37(b)(2). The Defendant contends that the trial court erred in denying her motion to suppress the evidence resulting from the traffic stop. Following our review, we affirm the judgment of the trial court.

The Franklin County Grand Jury indicted Appellant, Jessica Lee Clark, for one count of driving under the influence (“DUI”), one count of violation of the implied consent law, and one count of reckless driving. Appellant was convicted of DUI by a jury and the trial court determined she had violated the implied consent law. She was acquitted of the reckless driving charge. The trial court sentenced Appellant to eleven months and twenty-nine days to be served on probation except for seven days to be served in confinement. Appellant appeals her DUI conviction. On appeal, Appellant argues that the evidence presented that she was intoxicated through the ingestion of alcohol is not sufficient evidence to support her conviction because the use of the term “intoxicant” in Tennessee Code Annotated section 55-10-401(a)(1) requires evidence of the use of an intoxicant other than alcohol. We conclude that the term “intoxicant” as used in Tennessee Code Annotated section 55-10-401(a)(1) does include alcohol and that Appellant’s argument is without merit. Therefore, we affirm the judgment of the trial court.

This case is before the court after remand to the Campbell County Criminal Court for resentencing. The Defendant, Courtney Partin, was convicted by a Campbell County Criminal Court jury of attempted first degree murder, a Class A felony, and two counts of aggravated assault, a Class C felony. See T.C.A. §§ 39-13-202 (Supp. 2001) (amended 2002, 2007), 39-13-102 (Supp. 2001) (amended 2002, 2005, 2009, 2010). The trial court merged one count of aggravated assault with the attempted first degree murder because the offenses involved the same victim and sentenced the Defendant as a Range I, standard offender to twenty-two years’ confinement for attempted first degree murder and to four years’ confinement for aggravated assault, to be served concurrently. On appeal, the Defendant contends that the trial court erred during sentencing by beginning its sentencing consideration at the midpoint in the applicable range. We affirm the judgments of the trial court.

This appeal involves a suit for dissolution of a real estate partnership. The defendant-appellee also filed several counterclaims against the plaintiff, who is an attorney. After a bench trial, the trial court dissolved the partnership and found that the defendant-appellant was liable for one-half of the partnership’s debts and expenses. The court dismissed the counterclaims. We affirm.