APPELLATE COURT OPINIONS

Appellants, a flooring company hired to install hardwood flooring at a home being built by Appellee, appeal the judgment of the trial court finding them liable for breach of contract and breach of warranty and awarding damages to Appellee. Appellants were hired to install hardwood flooring at a home being built by Appellee. After installation of the floors, problems developed; Appellants tried to correct the problems on numerous occasions to no avail. Appellee hired another subcontractor to refinish the hardwood flooring and to resolve the problems associated therewith. Appellee subsequently brought action against Appellant to recover amounts paid to subcontractor and the trial court awarded Appellee full measure of damages sought. We modify and affirm the judgment of the trial court.

The appellant, a former police officer, filed a petition for writ of certiorari in the chancery court alleging that her due process rights were violated when the City of Bartlett terminated her employment. We affirm the trial court’s finding that the appellant was an employee-at-will, and therefore, she had no protected property interest in her job.

The defendant, Dalton Lister, appeals from his jury convictions in the Bradley County Criminal Court for first degree felony murder; two counts of attempted aggravated robbery, a Class C felony; and conspiracy to commit aggravated robbery, a Class C felony. He received a life sentence, with concurrent sentences of six years as a Range I, standard offender for each Class C felony. On appeal, the defendant contends (1) that the evidence was insufficient to convict him of the charged offenses; (2) that the trial court erred in not permitting cross-examination regarding a severed defendant’s outstanding arrest warrant, pending charges, status as a fugitive, and possible bias to fabricate testimony to obtain a favorable disposition of the pending charges; (3) that the trial court erred by failing to suppress a recorded statement of the defendant when the original recording was intentionally destroyed and lost by the detective who had possession of it; and (4) that the trial court erred in not ordering disclosure of the detective’s statement to the Tennessee Bureau of Investigation concerning the lost and destroyed original recording of the defendant’s statement taken the night of the homicide. We hold that the evidence was sufficient to convict the defendant of the charges and that the defendant waived his remaining issues by not filing a timely motion for new trial, and we affirm the judgments of the trial court.

The issue on appeal is whether Titan Insurance Company, which issued a “no-fault” automobile insurance policy to a Michigan resident, is entitled to be reimbursed for “personal protection insurance benefits” paid to its insureds for injuries sustained in a vehicular accident in  Tennessee. After the insureds entered into a substantial settlement agreement with the tortfeasors in this civil action, which compensated them in addition to the benefits paid by Titan under the no-fault policy, Titan intervened seeking reimbursement of the benefits it paid. Titan contended that it was entitled, pursuant to Michigan’s No-Fault Insurance Act to reimbursement of the benefits remitted. The insureds, relying on the “made whole doctrine,” contended they had not been made whole by the settlement with the tortfeasor; therefore, Titan was not entitled to reimbursement. The trial court held that the made whole doctrine applied and that the insureds had not been made whole by the settlement; therefore, Titan was not entitled to reimbursement in any amount. Under Michigan’s No-Fault Insurance Act, specifically Mich. Comp. Laws § 500.3116(2), (4), the right of the no-fault insurer to reimbursement of “economic” benefits paid for the benefit of its insureds is not dependent upon whether its insureds have been made whole by a settlement with the tortfeasor. Therefore, Titan’s right to reimbursement of economic benefits paid is not dependent on whether its insureds were “made whole.” Accordingly, the judgment of the trial court is reversed, and we remand with instructions for the trial court to determine the extent to which Titan is entitled to be reimbursed.

A jury convicted the Defendant, Derrick Brandon Wells, of both the sale and delivery of over .5 grams of a Schedule II controlled substance, crack-cocaine. The trial court merged the convictions and sentenced the Defendant as a Range II, multiple offender to twenty years and fined the Defendant $75,000. The Defendant appeals, contending the evidence was insufficient to support his conviction of the sale of crack-cocaine. After reviewing the record and relevant authorities, we affirm the judgment of the trial court.

The defendant, Arterio Holman, was convicted by a Shelby County Criminal Court jury of simple possession of cocaine and possession with intent to deliver 26 grams or more of cocaine. The trial court merged the simple possession conviction with the possession with intent to deliver convictionand sentenced the defendant as a Range I offender to eleven years in the Department of Correction. On appeal, he argues that (1) the trial court erred in allowing an officer to testify as an expert on drug intent to deliver more than 26 grams of cocaine, (3) the trial court imposed an excessive sentence, and (4) cumulative error compromised his rights to a fair trial and due process. After review, we affirm the judgment of the trial court.

The defendant, Deangelo Davis, was convicted by a Shelby County jury of criminal attempt to commit first degree murder, a Class A felony. For his conviction, the defendant received a sentence of twenty-five years in the Tennessee Department of Correction. On appeal, the defendant raises the following issues: (1) whether the trial court erred in denying the defendant’s motion for a mistrial; (2) whether evidence of a fight between the defendant’s cousin and the victim’s uncle was properly admitted; and (3) whether the trial court erred in refusing to allow the defendant to impeach the victim’s testimony with evidence of a prior conviction. Upon review of the record and the parties’ briefs, we affirm the judgment of the trial court.

The defendant, Chanceller Chatman, was convicted by a Shelby County Criminal Court jury of one count of felony murder, one count of especially aggravated robbery, and four counts of aggravated robbery. He was sentenced to life imprisonment for the felony murder conviction, fifteen years for the especially aggravated robbery conviction, eight years each for two of the aggravated robbery convictions, and twelve years each for the remaining aggravated robbery convictions. The trial court ordered that the life sentence for felony murder and the fifteen-year especially aggravated robbery sentence be served concurrently to each other. The court further ordered that the aggravated robbery sentences be served consecutively to each other and consecutively to the life plus fifteen-year sentence, for an effective sentence of life plus forty years. On appeal, the defendant challenges the sufficiency of the evidence in support of his felony murder conviction and the trial court’s imposition of consecutive sentences. Following our review, we affirm the judgments of the trial court.

The defendant, Charlton Garner, was convicted by a Shelby County jury of second degree murder, a Class A felony; attempted second degree murder, a Class B felony; and reckless endangerment, a Class E felony. He was subsequently sentenced by the trial court to an effective sentence of twentyeight years in the Department of Correction. On appeal, he raises the single issue of sufficiency of the evidence with regard to each of the convictions. Specifically, he argues that the evidence presented at trial supports his theory of self-defense. Following review of the record, we affirm the judgments of conviction.

The Defendant, Gary V. Bullard, was charged with one count of aggravated assault and one count of attempted aggravated rape. Following a jury trial, he was found guilty of both counts. In this direct appeal, he argues that (1) the State presented evidence sufficient to convict him of simple assault, but not aggravated assault; and (2) the State presented evidence insufficient to convict him of attempted aggravated rape. After our review, we affirm the judgments of the trial court.

*NOTE: Opinion filed pursuant to 09-15-2009 Order granting rehear, wherein original opinion filed 08-05-2009 was withdrawn.

Plaintiff is subject to excise and franchise taxes in the State of Tennessee. For the five year period at issue the Commissioner issued a variance pursuant to the Uniform Division of Income for Tax Purposes Act which has been adopted by Tennessee. The variance enabled the Commissioner to alter the taxing formula and increase the amount of revenue assessed to plaintiff. Plaintiff filed this action in Chancery Court and the Chancellor voided the variance. On appeal, we hold that the Commissioner properly exercised her discretion in issuing the variance. We reverse the Chancellor and remand.

A Davidson County Criminal Court jury convicted the appellant, Jeremy Paul Duffer, of the following indicted offenses: Seven counts of rape of a child, four counts of aggravated sexual battery, two counts of especially aggravated sexual exploitation of a minor, and two counts of failure to appear. After a sentencing hearing, the appellant received an effective sentence of one hundred thirty-seven years in confinement. On appeal, the appellant contends that the evidence is insufficient to support the convictions and that his effective sentence is excessive. Upon review, we affirm the judgments of the trial court.

Following a jury trial, Defendant, Nicholas Fletcher was found guilty of first degree felony murder, attempted especially aggravated robbery, a Class B felony, and aggravated assault, a Class C felony. Defendant was sentenced as a Range I, standard offender, to life imprisonment with the possibility of parole for his felony murder conviction, eight years for his attempted especially aggravated robbery conviction, and three years for his aggravated assault conviction. The trial court ordered Defendant to serve his sentences concurrently for an effective sentence of life with the possibility of parole. On appeal, Defendant argues that (1) the trial court erred in denying his motion to suppress; (2) the prosecutor engaged in prosecutorial misconduct during the cross examination of Cordareyes Torry; and (3) the cumulative effect of these errors denied Defendant his constitutional right to a fair trial. After a thorough review, we affirm the judgments of the trial court.

The petitioner, Marcus Rogers, appeals from the post-conviction court’s denial of post-conviction relief as it relates to the petitioner’s convictions on one count of second degree murder and two counts of attempted second degree murder. On appeal, the petitioner argues that he received the ineffective assistance of counsel. Following our review of the record and the parties’ briefs, we affirm the judgment of the post-conviction court denying post-conviction relief.

The petitioner, Kenyale Pirtle (“Pirtle”), appeals the summary dismissal of his petition for writ of habeas corpus. In this appeal, Pirtle raises a single issue for our review. He argues that the trial court erred in granting the motion to dismiss because the Attorney General and Reporter, acting through one of his assistants, had no authority to file a motion to dismiss in the habeas court. We affirm the judgment of the trial court.

Petitioner seeking review of disciplinary action taken by warden of prison appeals the dismissal of his petition for writ of certiorari. Finding the trial court did not err, we affirm the dismissal of the petition.

Plaintiff, a patient care partner formerly employed by a hospital, brought suit against the hospital after her termination, alleging violations of the Tennessee Handicap Act, the Americans with Disabilities Act, the Tennessee Human Rights Act, the Family and Medical Leave Act and retaliatory discharge. The hospital filed a motion for summary judgment, which the trial court granted. Finding that the plaintiff did not create a genuine issue of material fact on essential elements of her claim of retaliatory discharge, we affirm the decision of the trial court.

The Defendant, Susan Gail Stephens, was charged with two counts of statutory rape and two counts of contributing to the delinquency of a minor. The State denied her application for pretrial diversion, and she petitioned for a writ of certiorari to review the State’s decision. The Circuit Court of Coffee County upheld the denial of pretrial diversion. The Defendant now appeals, arguing that the State, in its memorandum, considered irrelevant factors and failed to consider all relevant factors. After our review, we vacate the judgment of the trial court and direct that this case be remanded to the district attorney general for further consideration.

This is a negligence case. Appellant brought suit against Appellee alleging that Appellee negligently destroyed a piece of evidence. This evidence was relevant to a separate lawsuit involving Appellant. The trial court granted summary judgment in favor of Appellee finding that Appellee did not owe a duty of care to Appellant. Finding no error, we affirm.

The State of Tennessee ex rel. Mother filed a petition to modify the parties’ parenting plan. Finding the petition unfounded, the chancery court ordered Mother to pay Father’s attorney fees. However, upon learning that Mother could not be required to pay such fees, the chancery court assessed Father’s attorney fees against the State. We reverse.

This case arises out of a business agreement between the parties. Plaintiffs executed a note to purchase a company. The note contained a stock transfer restriction. Subsequently, Plaintiffs entered into a business agreement with Defendants. The subject of that agreement is disputed in this lawsuit, but Plaintiffs contend that Defendants purchased one-half of the company and executed an indemnity agreement to indemnify Plaintiffs for one-half of the note on the purchase of the company. After operating for nearly ten years, the company failed. At trial, Plaintiffs sought to enforce the indemnity agreement, and Defendants counterclaimed to recover $73,000.00 that they paid to Plaintiffs before they allegedly executed the contract. The trial court found in Plaintiffs’ favor. Defendants now appeal claiming that the trial court made several evidentiary errors, that the contract is unenforceable because it violated the statute of frauds, that parol evidence regarding the terms of the contract was inadmissible, and that the corporation cannot continue its existence and sell stock after dissolution. We reverse the trial court’s determination based on our finding that the contract is unenforceable as a matter of public policy.

The petitioner, Ricky Lee Nelson, appeals the criminal court’s dismissal of his petition for postconviction relief. The state has filed a motion requesting that this court affirm the court’s judgment pursuant to Rule 20 of the Tennessee Court of Criminal Appeals. We conclude that the state’s motion is meritorious. Accordingly, we grant the state’s motion and affirm the judgment.

The petitioner, Charles Green, appeals the judgment of the Gibson County Circuit Court denying post-conviction relief. On appeal, the petitioner argues that he received the ineffective assistance of counsel which caused him to enter an unknowing and involuntary guilty plea. Following our review of the record and the parties’ briefs, we affirm the judgment of the court denying post-conviction relief.

The defendant, Lorne James Clabough, was convicted of especially aggravated kidnapping (Class A felony), aggravated assault (Class C felony), two counts of aggravated assault by recklessness (Class D felony), and evading arrest (Class E felony). The trial court imposed an effective sentence of twenty years. In our initial review, the convictions and sentences were affirmed. See State v. Lorne James Clabough, No. E2005-02133-CCA-R3-CD, 2007 Tenn. Crim. App. LEXIS 14 (Tenn. Crim. App. Jan. 8, 2007, at Knoxville), perm. to appeal granted, case remanded (Tenn. Oct. 15, 2007). Our supreme court remanded to this court for reconsideration in light of State v. Gomez II, 239 S.W.3d 733 (Tenn. 2007). Upon review, we remand to the trial court for resentencing of the defendant for his Class A felony and both Class D felony convictions, and we affirm the remainder of the sentence.