APPELLATE COURT OPINIONS

After eighteen years of marriage, Jennie F. Ingraham (“Wife”) sued Patrick Garrett Ingraham (“Husband”) for divorce. After a trial, the Trial Court entered its Final Judgment on December 7, 2009, inter alia, granting Wife a divorce and dividing the marital property. Husband appeals to this Court raising issues regarding the valuation and distribution of the marital property. Wife raises additional issues concerning the property distribution and attorney fees. We affirm as to the Trial Court’s valuation of items of marital property, the determination that the Exxon stock is Husband’s separate property, and the denial of an award to Wife of attorney’s fees. We, however, remand this case for proof on the issue of whether Husband’s combined SEP and IRA fall under the definition contained in Tenn. Code Ann. § 36-4-121(b)(1)(B) pursuant to our Supreme Court’s Opinion in Snodgrass v. Snodgrass, 295 S.W.3d 240 (Tenn. 2009).

The defendant, Michael Martez Rhodes, pursuant to a plea agreement, entered an Alford “best interest” plea of guilty to two counts of attempted aggravated sexual battery, a Class C felony. The agreement provided for a four-year sentence for each conviction, with the manner of service to be determined by the trial court. Following a sentencing hearing, the trial court imposed consecutive sentences for a total effective sentence of eight years, to be served in the Department of  Correction. On appeal, the defendant argues that the trial court erred in denying probation and in imposing consecutive sentences. After careful review, we affirm the judgments from the trial court. However, we note the transcript shows an Alford “best-interest” guilty plea. The judgment reflects a plea of nolo contendere. We remand for a correction of the judgment.

Leta V. Myers (“Mother”) and Robert A. Myers (“Father”) were divorced in 1999. Approximately ten years later, Father filed a petition seeking to have his child support payment reduced after the oldest of the parties’ four children became emancipated. Mother responded to the petition. Mother also filed a counter-petition seeking a modification of the parenting plan as well as to have Father found in contempt of court for willfully violating numerous provisions of the final decree. When Father failed to respond timely to the counter-petition, Mother filed a motion for default judgment. The trial court granted the motion for default. Approximately three hours after the order granting the default judgment was entered, Father filed a response to the counter-petition. The trial court eventually found Father in contempt of court for numerous violations of the final decree. After Father’s motion to set aside the default judgment was denied, Father appealed challenging only the initial entry of the default judgment. We affirm.

The petitioner, David A. Romano, appeals the Fayette County Circuit Court’s summary dismissal of his petition for the writ of habeas corpus. The petitioner pled guilty to one count of Class D felony forgery, two counts of Class E felony forgery, and one count of Class A misdemeanor theft of property. He was subsequently sentenced to concurrent sentences of twelve years, two six-year sentences, and eleven months and twenty-nine days for the respective convictions. He was further ordered to serve the sentences in confinement. After a period, the trial court granted the petitioner’s motion to serve the balance of the sentences on probation; however, his probation was later revoked and the petitioner remainsincarcerated to date. On appeal, the petitioner argues that the trial court was without authority or jurisdiction to allow him to serve his sentence on probation because his sentence was greater than ten years, which precluded his eligibility to receive a probationary sentence. The State has filed a motion requesting that this court affirm the lower court’s dismissal pursuant to Rule 20 of the Rules of the Court of Criminal Appeals. Because the petitioner has failed to establish that he is currently restrained pursuant to an illegal sentence, we grant the State’s motion and affirm the judgment of the Fayette County Circuit Court.

In November 2006, the Putnam County grand jury indicted Appellant, Robin Blaskis, for one count of theft over $60,000. Following a jury trial, Appellant was convicted as charged. The trial court sentenced Appellant to ten years as a Range I, standard offender. On appeal, Appellant argues that the trial court erred in denying her motion to dismiss based upon the violation of her right to a speedy trial and that the evidence was insufficient to support her conviction. After a thorough review of the record, we conclude that the trial court’s denial of her motion to dismiss was correct because the four factors set out in Barker v. Wingo, 407 U.S. 514 (1972), did not weigh in her favor. We also conclude that the evidence was sufficient to support her conviction. Therefore, the judgment of the trial court is affirmed.

Defendant, Larry C. Thompson, Jr., has appealed from the trial court’s order which denied defendant’s “Motion to Reopen and Suspend Sentence.”  The sentence which defendant sought to “reopen” and suspend was entered May 10, 2004. The motion to “reopen” and suspend the sentence was not filed until over five years later in July 2009. After a review of the record and the briefs, we affirm the judgment of the trial court.

The father of a minor child appeals his conviction of eighteen counts of criminal contempt for willful failure to pay child support. He contends the evidence was insufficient to sustain the convictions because the State failed to present evidence he had the ability to pay or that his failure to pay was willful. We agree and reverse the holding of the trial court.

Defendant-Appellant, Dana Kennedy Walls, was convicted by a Warren County Circuit Court jury of facilitation of initiating a process to manufacture methamphetamine in count one, a Class C felony; facilitation of promoting the manufacture of methamphetamine in count two, a Class E felony; and promoting the manufacture of methamphetamine in count three, a Class D felony. She was sentenced as a Range I, standard offender to serve concurrent sentences of five years with service of 365 days in confinement for count one, two years with service of 90 days in confinement for count two, and three years with service of 250 days in confinement for count three, for an effective sentence of five years with 365 days in confinement prior to serving the remainder of her sentence on probation. On appeal, Dana Walls argues: (1) the evidence was insufficient to support her convictions, (2) the trial court committed reversible error in failing to instruct the jury on the lesser included offense of attempt for each of the charged offenses, and (3) her sentence is excessive. Following our review, we affirm the judgments of the trial court.

The plaintiffs were injured in a car accident in which their car collided with a stolen car. They sued the City of Murfreesboro and its police department, arguing that the stolen car was being pursued by the police immediately prior to the accident. The plaintiffs also sued the person who was using the car with its owner’s permission prior to the theft, arguing that he had acted negligently in leaving the keys in the car. The trial court granted summary judgment in favor of all of the defendants. With respect to the city and its police department, we affirm. With respect to the user of the offending car prior to its theft, we reverse and remand.

This is an employee discharge case. Plaintiff was an at-will employee who alleged that his termination violated the implied covenant of good faith and fair dealing in his employment contract. The Tennessee Claims Commission dismissed his complaint for failure to state a claim. We affirm.

A Scott County jury found the Appellant Hubert Glenn Sexton guilty of two counts of first degree murder arising from the deaths of Stanley and Terry Goodman. Following penalty phase, the jury found the presence of one statutory aggravating circumstance, that the murder was committed for the purpose of avoiding, interfering with, or preventing a lawful arrest or prosecution of the defendant or another, and that this aggravator outweighed any mitigating factors. See T.C.A. § 39-13-204(i)(6). The jury imposed sentences of death. Appellant Sexton seeks review by this court of both his convictions for first degree murder and his sentences of death. He raises the following issues for our review: (I.) Whether the trial court erred in denying a motion for change of venue; (II.) Whether the trial court erred in failing to properly admonish the jury before and during trial; (III.) Whether the trial court erred in failing to adequately voir dire the jury regarding extrajudicial information; (IV.) Whether the trial court erred in failing to excuse certain jurors for cause; (V.) Whether the trial court erred in admitting allegations of child sexual abuse; (VI.) Whether the trial court erred in admitting testimony regarding the Appellant’s
willingness and later refusal to take a polygraph examination; (VII.) Whether the trial court erred in admitting statements made by the Appellant’s wife; (VIII.) Whether the trial court erred in admitting evidence that was similar to the murder weapon; (IX.) Whether the trial court erred in admitting evidence of an unrelated speeding arrest; (X.) Whether the trial court erred in admitting evidence that Appellant alleges was unlawfully obtained from his vehicle; (XI.) Whether the trial court erred in admitting evidence relating to the preparation of Appellant’s IRS tax forms; (XII.) Whether individual and cumulative instances of prosecutorial misconduct
denied him a fair trial; (XIII.) Whether the convicting evidence was sufficient to support his convictions; (XIV.) Whether the verdict was contrary to the weight of the evidence; (XV.) Whether Tennessee’s death penalty scheme is constitutional; and (XVI.) Whether the trial court erred in denying the motion for new trial based on cumulative error. Following our review, we affirm the judgments of the trial court.

The defendant, Warren Parker, appeals the trial court’s denial of any form of alternative sentencing. The defendant entered a guilty plea to three counts of aggravated assault, a Class C felony, and one count of evading arrest, a Class A misdemeanor. He was sentenced to concurrent six year sentences for the Class C felonies and to a concurrent eleven-month, twenty-nine-day sentence for the Class A misdemeanor. After careful review, we affirm the trial court’s judgments that deny alternative sentencing.

Plaintiff filed a cause of action asserting breach of contract and violation of the Tennessee Human Rights Acts. The trial court awarded summary judgment to Defendant Memphis Light Gas & Water Division based on the applicable statute of limitations. We affirm.

This appeal involves the question of whether the trial court properly dismissed Plaintiff’s action when another related lawsuit, filed prior to this Hamblen County Chancery Court action, was pending in Knox County Chancery Court. We hold that the trial court properly dismissed Plaintiff’s action under the prior suit pending doctrine. Accordingly, we affirm.

The defendant, Deredious Otis, stands convicted of aggravated assault, a Class C felony. The trial court sentenced him as a Range I, standard offender to four and a half years in the workhouse. On appeal, the defendant presents seven issues for our review: (1) whether the trial court erred in denying the defendant’s motion for judgment of acquittal; (2) whether the trial court erred by not allowing the defendant to enter his own statement to police as evidence; (3) whether the trial court erred by refusing to instruct the jury on the affirmative defenses of self-defense and defense of a third party; (4) whether the trial court erred by restricting defense counsel’s cross-examination; (5) whether the trial court erred by threatening defense counsel with contempt; (6) whether the trial court committed a Batson error in the composition of the final jury; and (7) whether the trial court improperly applied sentencing factors. Finding no reversible error, we affirm the judgment of the trial court.

This appeal involves a boundary line dispute based on competing surveys. The plaintiffs, Doyle and Gloria Sweeney (“the Sweeneys”), and the defendants, Charles and Valerie Koehler (“the Koehlers”), own adjoining real properties. The Sweeneys brought a declaratory judgment action against the Koehlers, seeking to have the boundary line declared between the parties. The Koehlers counterclaimed. The trial court found that the statutory bar codified in Tenn. Code Ann. § 28-2-110 did not apply to the Koehlers and that the Sweeneys were not entitled to a rebuttable presumption of ownership to the disputed land under § 28-2-109 based upon the payment of property taxes on the tract for over 20 years. The trial court determined the common boundary line as contended by the Koehlers. The Sweeneys appealed. We affirm the decision of the trial court.

Property developer applied to the Town of Smyrna for a rezoning request for a planned development. The request was initially approved by the Planning Commission, but the Town Council later voted to deny the request. The developer appealed by writ of certiorari to the Rutherford County Chancery Court, which affirmed the decision. On appeal, the developer asserts that the Town Council’s action was arbitrary and capricious. We affirm.

The Defendant-Appellants, Dar Es Salaam Cole and Thomas Lopez, were convicted by a Shelby County Jury of facilitation of the sale of 300 grams or more of cocaine and unlawful possession of 300 grams or more of cocaine with the intent to sell or deliver. After a sentencing hearing, the trial court merged the above convictions and sentenced Cole and Lopez to nineteen years imprisonment in the Tennessee Department of Correction. In this consolidated appeal, Lopez argues that (1) the trial court erred in denying his motion to suppress and (2) the evidence was insufficient to sustain his convictions. In addition to these issues, Cole argues that (3) the traffic stop was racially motivated in violation of the Fourteenth Amendment’s equal protection clause; (4) the jury was “impermissibly influenced” by (a) the presence of the prosecutor and defense counsel in the jury room during deliberations, and (b) comments by the trial court while instructing the jury; and (5) the trial court failed to discharge the jury when there was no probability for agreement and failed to charge “a deadlock (Kersey) instruction.” Upon our review, we discern no reversible error and affirm the judgments of the trial court.

The appellant, Brandon Stacy Lambert, was convicted of numerous drug related offenses, aggravated burglary, theft, and burglary. The trial court imposed a total effective sentence of seventeen years. The appellant was granted probation and was ordered to complete the drug court program. After the appellant was dismissed from the drug court program, the trial court revoked his probation and ordered him to serve his original sentence in confinement. On appeal, the appellant concedes a "technical violation" of the conditions of probation but requests that he once again be granted probation. Upon review, we affirm the judgments of the trial court.

Lindsi Allison Connors ("Mother") and Jeremy Phillip Lawson ("Father") are the parents of a daughter (the "Child") who currently is eight years old. Several parenting plans have been entered over the years. Mother eventually moved with the Child to Florida, and thereafter, Father filed a petition claiming there had been a material change in circumstances such that it was in the Child's best interest for him to be designated the primary residential parent. Father also sought to have Mother held in contempt of court. Following a hearing, the trial court found Mother in contempt but refused to mete out any punishment for the contemptuous conduct. The trial court made no mention in its final judgment as to the petition for a change in custody. The trial court then abdicated jurisdiction and instructed the parties to take up any future matters with the Florida courts. We vacate the trial court's judgment and remand for further proceedings consistent with this Opinion.

The Defendant-Appellant, Edward L. Hood, Jr., was convicted by a Henderson County Circuit Court jury of two counts of rape of a child, a Class A felony, and two counts of incest, a Class C felony. He received consecutive sentences of twenty-three years and twenty-five years for the rape of a child convictions, and concurrent five-year sentences for each of the incest convictions, for an effective sentence of forty-eight years in the Tennessee Department of Correction. On appeal, Hood argues: (1) the evidence was insufficient to support his convictions; (2) his right to a fair trial was violated when trial counsel announced that Hood was pleading guilty at the start of trial; (3) the trial court erred in preventing the victim’s sister from testifying for the defense at trial; and (4) the trial court erred by failing to grant a new trial on the basis of newly discovered evidence. Upon review, we affirm the judgments of the trial court.

This is an action to enforce a promissory note. The plaintiff/appellee, a realty company, entered into an exclusive listing agreement with John Sporup for the sale of real property. The listing agreement provided for an eight percent commission in cash on the sale of the property. The realty company secured a buyer, the sale closed, and it received a portion of the commission owed. As an accommodation to the client, however, the realty company agreed to defer the unpaid portion of the commission. Mr. Sporup and his wife, co-owners of the corporation selling the property, signed a promissory note in their individual capacities providing for payment of the deferred commission in monthly installments with a balloon payment due at the end of three years. After the buyer defaulted, the Sporups declined to honor the terms of the promissory note, maintaining that payment of the remaining commission was conditioned on their receipt of the buyer's payments. The realty company filed this action to recover the unpaid commission, pre-judgment interest, and attorney's fees under the terms of the promissory note. The Sporups counterclaimed. The trial court awarded the realty company a judgment in the amount of $85,327.82 after a bench trial. Because the Sporups have not established a breach of fiduciary duty entitling them to an offsetting award of damages, we affirm.

The defendant, James Porter McFarland, presents for our review a certified question of law pursuant to Tennessee Rule of Criminal Procedure 37(b)(2). The defendant pleaded guilty to driving under the influence, second offense. As a condition of his guilty plea, the defendant reserved a certified question of law challenging the denial of his motion to suppress based upon his allegation that police subjected him to an unconstitutional investigative stop. Following our review, we affirm the judgment of the trial court denying the defendant's motion to suppress.

The Defendant, Brian L. Tune, was charged with driving under the influence (DUI), second offense. Following the Loudon County Criminal Court's denial of his motion to suppress the breath alcohol test results, the defendant pled guilty to DUI, first offense, a Class A misdemeanor. Pursuant to the plea agreement, the trial court sentenced the defendant to 11 months and 29 days in the county jail suspended to a community based alternative sentence. Pursuant to Rule 37(b)(2)(A) of the Tennessee Rules of Criminal Procedure, the defendant sought to reserve a certified question of law challenging the breath alcohol test results. However, we conclude the certified question is not dispositive. We also note that the defendant failed to file a timely notice of appeal and provides no reason to waive the timely filing of the notice of appeal. The appeal is dismissed.

The son of a woman who died at the age of ninety-four filed a petition for probate in solemn form of his mother's lost will. After examining a photocopy of the alleged will and hearing proof from six witnesses, the trial court granted the petition. One of the granddaughters of the decedent appealed, and she has presented a number of arguments to suggest that the trial court erred. We have considered her arguments on appeal, but in the absence of a trial transcript or a statement of the evidence, we must assume that the trial court's decision is fully supported by the record. We accordingly affirm.