APPELLATE COURT OPINIONS

A former husband appeals issuance of a restraining order in a proceeding on a petition for a protective order arguing that the trial court awarded unrequested relief. The appellant failed to provide a record of the hearing before the trial court. Absent a record, since we must assume the record would support the trial court, we affirm.

This appeal arises from a post-divorce proceeding wherein the minor child’s mother, contending that there had been a material change in circumstances, sought a change of custody. After several days of hearings, the trial court transferred custody from the father to the mother. We find that the trial court applied an incorrect legal standard and also find that the final hearing below was prematurely terminated. We therefore vacate and remand for further proceedings.

The daughter of a nursing home resident used a power of attorney granted by her mother to sell the mother a joint tenancy with right of survivorship in a condominium the daughter owned, with the intention of spending down the mother’s liquid assets so she could qualify for Medicaid. A conservator was subsequently appointed to protect the mother’s interests, and he filed suit for the partition and sale of the condominium property. The mother died shortly thereafter. The court granted the request for partition, but stayed the sale of the property pending this interlocutory appeal. The daughter argues on appeal that Tennessee should follow the general rule which provides that the death of a joint tenant with right of survivorship extinguishes a pending suit for partition. We agree, and we reverse the trial court.

After more than eighteen years of marriage, Stacy Cagle Davis (“Wife”) sued Robert F. Davis (“Husband”) for divorce. The case was tried and the Trial Court entered a Final Decree declaring the parties divorced, approving the parenting plan submitted with regard to the parties’ minor child, ordering Husband to pay child support, dividing the marital property and marital debts, and denying Husband’s request for alimony. Husband appeals the denial of his request for alimony to this Court. We reverse the denial of alimony to Husband, award Husband rehabilitative alimony of $800 per month for 36 months, award Husband attorneys’ fees at trial and on appeal, and remand to the Trial Court for a determination of the proper amount of attorneys’ fees. The remainder of the Trial Court’s Final Decree is affirmed.

The Defendant, Christopher Shane Poole, pled guilty in the Dickson County Circuit Court to two counts of misdemeanor theft. Under the plea agreement, he received consecutive terms of eleven months and twenty-nine days, and his sentence was probated. Following a hearing, the trial court ordered the Defendant to pay restitution in the amount of $1400.00 to the bank where he made the fraudulent withdrawals of funds. On appeal, the Defendant argues that the bank is not a “victim” for the purposes of the restitution statute, Tennessee Code Annotated section 40-35-304. After a review of the record, we uphold the order of restitution to the bank. We remand for entry of corrected judgments.

This appeal involves the denial of a petition for a writ of certiorari. The appellant prisoner was denied a hearing in front of the appellee board of probation and parole. The prisoner thereafter filed a petition with the chancery court, seeking review of the board’s decision. The chancery court entered an order stating that, in order to avoid dismissal of his petition, the prisoner was required to file, among other documents, a summons for each defendant, with a copy of the petition for each summons to be issued. The prisoner failed to file the summonses, and the chancery court dismissed the petition without prejudice. The prisoner appeals the dismissal, alleging numerous federal constitutional violations. We affirm, finding that the chancery court properly dismissed the petition without prejudice for failure to file a summons.

This appeal involves the Tennessee saving statute, Tenn. Code Ann. § 28-1-105. The plaintiffs’ lawsuit was dismissed without prejudice for failure to prosecute when their attorney failed to appear at a hearing. Three months after the dismissal, the plaintiffs’ attorney filed a motion seeking relief from the order of dismissal, citing the saving statute, along with an amended complaint. The trial court considered the motion under Rule 60 but did not address the applicability of the saving statute. The court refused to set aside the order of dismissal upon finding that the attorney’s failure to attend the hearing did not constitute excusable neglect. The plaintiffs appeal. We reverse and remand for further proceedings.

I fully concur in the excellent majority opinion. I would simply add that Tennessee commercial law supports the majority’s conclusion that the payor bank held a valid claim against the defendant. Generally, “an unauthorized signature is ineffective except as the signature of the unauthorized signer in favor of a person who in good faith pays the instrument or takes it for value.” T.C.A § 47-3-403(a) (2001).

The issue on appeal in this contract dispute is whether the defendant breached its indemnification obligations under the terms of a stock purchase agreement. The trial court found that the plaintiff was entitled to be reimbursed for payment of a claim specifically identified under the indemnification provisions of a stock purchase agreement. Significantly, the trial court found that the indemnity provisions in the stock purchase agreement anticipate the specific loss and assure that it will be paid by the defendant. The defendant contends that the plaintiff has already received reimbursement for that payment through the post-closing working capital adjustment and the plaintiff, therefore, is not entitled to reimbursement under the indemnification provisions. Finding no error, we affirm.

Following a jury trial, Defendant was convicted of one count of second degree murder. On appeal, Defendant argues that the evidence used to convict him was insufficient to sustain a conviction for any offense greater than voluntary manslaughter. After a thorough review of the record, we affirm the judgment of the trial court

The petitioner, Tarkis Jones, sought post-conviction relief after pleading guilty to charges of second degree murder, unlawful possession of a weapon, and assault. The Shelby County Criminal Court denied relief after an evidentiary hearing. On appeal, the petitioner argues that his guilty plea was unlawfully induced and that he received the ineffective assistance of counsel. We affirm the denial of post-conviction relief.

The Petitioner, George Campbell, Jr., appeals the trial court's denial of his petition for coram nobis relief. The State has filed a motion requesting that this Court affirm the trial court's denial of relief pursuant to Rule 20, Rules of the Court of Criminal Appeals. We conclude that the State's motion is meritorious. Accordingly, we grant the State's motion and affirm the judgment of the lower court.

I concur with the majority opinion that the evidence presented in this case does not preponderate against the trial court’s finding that Mr. Cotton was permanently and totally disabled as a result of the injury he sustained while working at Goodyear Tire & Rubber Company. In order to find that this injury rendered Mr. Cotton permanently and totally disabled, however, it is necessary to find that he sustained the shoulder injury and that the injury and subsequent treatment aggravated his pre-existing diabetes.

This workers’ compensation appeal has been referred to the Special Workers’ Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated section 50-6-225(e)(3) for a hearing and a report of findings of fact and conclusions of law. Employee was a diabetic. He suffered a compensable shoulder injury, which required two surgeries and another procedure to correct. He returned to work on light duty status. Some time later, he fell into a diabetic coma. He subsequently developed renal failure and required dialysis thereafter. The trial court found Employee to be permanently and totally disabled, found that the shoulder injury alone had caused a 30% permanent partial disability, and apportioned the award between Employer and the Second Injury Fund. The Fund has appealed, contending that the trial court erred in awarding benefits for permanent total disability. Employee contends that the trial court erred in attributing only 30% disability to the shoulder injury, and in apportioning the award under Tennessee Code Annotated section 50-6-208(a). We affirm the judgment and remand the case for proceedings consistent with this opinion and the Suggestion of Death upon the Record filed in this matter.

The defendant, Jamiel D. Williams, appeals his Williamson County Circuit Court conviction of first degree murder, alleging that there was insufficient evidence to prove premeditation. We hold that the evidence presented at trial was sufficient and affirm the judgment of the trial court. The judgment is modified because it incorrectly classifies the sentence as a Class A felony.

Tenant appeals the Circuit Court’s dismissal of its appeal of the Judgment and Order of the General Sessions Court granting Landlord possession of leased premises. The basis of the Circuit Court’s dismissal was Tenant’s failure to comply with the Court’s second Order requiring Tenant to post a bond. Finding error in the application of Tenn. Code Ann. § 29-18-130, we reverse the decision of the Trial Court and remand this case for further proceedings in accordance with this opinion.

The City of Jackson appeals the trial court’s dismissal of its action against the Commissioner of Commerce and Insurance seeking reimbursement for building demolition expenses under Tenn. Code Ann. § 68-102-122. Finding that sovereign immunity prohibits monetary claims against the state when brought seeking a declaratory order under either the Declaratory Judgment Act, Tenn. Code Ann. § 29-14-101 et seq., or the Administrative Procedures Act, Tenn. Code Ann. §4-5-225, we affirm.

Appellant, a prisoner in the custody of the Tennessee Department of Correction, challenges the trial court's order dismissing his Petition for Writ of Certiorari. The record reveals that the court reached its decision in a lawful manner. We affirm.

Several taxpayers appealed Madison County’s valuation of the taxpayers’ limited partnership property to the Tennessee State Board of Equalization. The administrative law judge scheduled a pre-hearing conference, with notice being sent to the taxpayers and Madison County. Some confusion arose, and no representative for Madison County attended the conference. The administrative law judge entered a default judgment against Madison County, and Madison County timely filed a petition to reconsider with the administrative law judge. The administrative law judge took no action on the petition, and after twenty days, the petition was deemed denied by operation of law. Madison County then failed to appeal the administrative law judge’s denial of the petition to reconsider within thirty days to the Assessment Appeals Commission. The Assessment Appeals Commission thereafter issued the Official Certificates of Assessment. Madison County filed a motion to reconsider the Official Certificates with both the administrative law judge and the Board of Equalization, seeking relief under Rule 60.02 of the Tennessee Rules of Civil Procedure. The administrative law judge denied the motion, but the Board of Equalization granted relief and remanded the matter to the administrative law judge. The taxpayer defendants then filed a petition with the Board of Equalization, challenging the Board’s order setting aside the default judgment. The taxpayers filed a petition for review in chancery court in Madison County. Thereafter, the Board held a hearing, reversed its prior order, and reinstated the default judgment against Madison County. Madison County filed a petition for review in chancery court in Madison County pursuant to Tenn. Code Ann. § 4-5-322, seeking review of the Board’s reinstatement of the default judgment. The chancery court granted the taxpayers’ motion for summary judgment. Madison County appeals, and we affirm.

This workers’ compensation appeal has been referred to the Special Workers’ Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated section 50-6-225(e)(3) (2005) for hearing and reporting to the Supreme Court of findings of facts and conclusions of law. The trial court found that the employee had suffered a 65 percent vocational impairment to the body as a whole resulting from gradual hearing loss and tinnitus and also found that the employee’s last day worked was his date of injury. The trial court awarded 260 weeks of permanent partial disability benefits. The employer has appealed, contending that the employee failed to prove causation of his tinnitus and that he is therefore entitled to recover only for his hearing loss, an injury to a scheduled member. The employer also asserts that the date of injury should be an earlier date, the last date on which the employee was exposed to high levels of noise injurious to his hearing. We hold that the trial court was correct in setting the employee’s date of injury as the last day on which the employee worked for the employer. Based on the proof in the record, we hold that the trial court did not err in ruling that the employee suffered a “whole body” impairment. The judgment below is affirmed.

This appeal involves a petition for writ of certiorari filed by an inmate. Following the investigation of a homicide at the prison, disciplinary charges were filed against the petitioner. The prison disciplinary board held a hearing and found the petitioner guilty of the charges. The petitioner was indicted by a grand jury and charged with second degree murder, but the case was later dismissed via nolle prosequi. The petitioner then filed his petition for writ of certiorari challenging the prison disciplinary board’s actions at the hearing, and the trial court dismissed it as untimely. The petitioner appeals. We affirm.

The Appellant, Robert Lee Adams, Jr., was convicted by a Tipton County jury of Class B felony possession of a Schedule II controlled substance and misdemeanor possession of a Schedule VI controlled substance. Following a sentencing hearing, the trial court sentenced Adams to fourteen years, as a Range II multiple offender, for Class B felony possession of cocaine and to eleven months and twenty-nine days for misdemeanor possession of marijuana. On appeal, Adams raises three issues for our review: (1) whether the trial court erred in denying Adams’ motion to suppress evidence upon grounds that the pat-down search was not supported by a reasonable fear for officer safety; (2) whether the evidence was sufficient to support the conviction for felony possession of a Schedule II controlled substance with the intent to deliver; and (3) whether the court erred in allowing the State to question the TBI forensic agent regarding the average weight of cocaine tested in a typical cocaine prosecution case. Following review, the judgments of conviction is affirmed.

This workers’ compensation appeal has been referred to the Special Workers’ Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated section 50-6-225(e)(3) for a hearing and a report of findings of fact and conclusions of law. The trial court awarded lump sum benefits. On appeal, a previous workers’ compensation appeals panel reversed and remanded for further proceedings. The Employee died for reasons unrelated to the injury, while the appeal was pending. The trial court modified its previous award and again commuted the amount to a lump sum. The Second Injury Fund has appealed, contending that the trial court erred by awarding benefits in excess of those which had accrued prior to the Employee’s death. We agree, modify the judgment accordingly, and remand to the trial court for the calculation of the benefits payable to the Estate.

This is an appeal from summary judgment granted in favor of the lessor in an action to collect the accelerated unpaid balance of $191,945.47 allegedly due under a lease agreement for digital printing equipment. After careful review of the record, we find that the lessee failed to meet its burden of proving the existence of a dispute of material fact that would preclude summary judgment. We affirm the judgment of the trial court in all respects.

An inmate at the Dickson County Jail who was attacked by another inmate filed this action against co-defendants, Dickson County and the Sheriff of Dickson County to recover damages for his personal injuries. The trial court summarily dismissed the complaint against both defendants without stating the legal grounds for its conclusion. The plaintiff contends the defendants breached their duty to prevent foreseeable harm because the defendants left a mop in the jail, which was not secured or locked away, and the defendants knew or should have known that a mop could be used by an inmate as a weapon. Penal institutions have a duty to use reasonable and  ordinary care to prevent foreseeable attacks on inmates by other inmates. For a penal institution to be liable for injuries resulting from inmate-on-inmate assaults, the general rule is that the institution must have had prior notice of an attack. The defendants supported their motion for summary judgment with affidavits stating that they had no notice and no reason to believe that the plaintiff was likely to be assaulted. This shifted the burden to the plaintiff to establish that a dispute of fact exists concerning whether the defendants knew of or had reason to anticipate such an attack. The evidence presented by the plaintiff fails to create a dispute of this material fact. Accordingly, we affirm.