APPELLATE COURT OPINIONS

Kristine Blankenship (“Plaintiff”) sued Anesthesiology Consultants Exchange, P.C. (“Defendant”) alleging, in part, that as a result of Defendant’s failure to properly treat a surgical patient Plaintiff suffered injuries including “a severe and disabling injury to her back.” Defendant filed a motion for summary judgment. After a hearing, the Trial Court granted Defendant summary judgment after finding that Plaintiff had failed to comply with Tenn. Code Ann. § 29-26-121 by filing her complaint less than 60 days after sending the notice letter. Plaintiff appeals to this Court raising issues regarding whether Defendant waived the defense of failure to state a claim upon which relief can be granted based upon Plaintiff’s failure to comply with Tenn. Code Ann. § 29-26-121 and whether Tenn. Code Ann. § 29-26-121 conflicts with Rule 18.01 of the Tennessee Rules of Civil Procedure as applied to this case. We hold, as did the Trial Court, that Defendant did not waive the defense of failure to state a claim upon which relief can be granted based upon Plaintiff’s failure to comply with Tenn. Code Ann. § 29-26-121, and that Plaintiff waived her second issue by not raising it in the Trial Court. We affirm.

Register of Deeds filed petition pursuant to Tenn. Code Ann. § 8-20-101 et seq. seeking an increase in compensation for her three deputy clerks and seeking an award of her costs, including attorney’s fees. The trial court denied Register the relief she sought, and she appealed. Based on the evidence presented and the language of the statute, we hold the trial court was required to determine the appropriate salary for Register’s assistants. Register is entitled under the applicable statute to have her costs, including her attorney’s fees, paid out of the fees collected by her office.

The Keenans and the Fodors are neighbors who share access to their respective properties through an elaborate stone and metal gate that had been constructed on an easement of way over the Keenans’ property by the prior owner of the Fodors’ property.  After a period of relative harmony, a dispute over the ownership of the gate led to a  lawsuit.  The trial court and this court ruled that the gate was personalty, not a fixture, and belonged to the Fodors, who were given authority to move it.  The trial court’s order also set out some ground rules for the shared use of the gate pending its removal.  Disagreements over the gate continued, resulting in two additional legal actions.  The first was a motion for civil contempt filed by the Fodors alleging that the Keenans had violated the judicially-ordered ground rules for the use of the gate.  For their part, the Keenans filed a motion to compel the Fodors to remove the gate from the easement and place it on their own property.  In one proceeding, the court found that the Keenans were in contempt of its orders.  In the other, it declined to order that the gate be removed.  We reverse the finding of contempt, but we affirm the trial court’s determination that the Fodors are not obligated to remove the gate.  We also hold, however, that the Fodors are not entitled to exclude the Keenans from the free use of their own property by keeping the gate locked.

This is a termination of parental rights case. Following a hearing, the trial court found clear and convincing evidence existed to support the termination of the father’s parental rights on the statutory grounds of (1) abandonment due to failure to visit and (2) failure to comply substantially with the permanency plan. The trial court further concluded that clear and convincing evidence revealed that termination was in the best interest of the children. The father appeals. We affirm the decision of the trial court.

Appellant, Marcus Smith, was convicted of one count of criminal attempt to commit rape of a child, a Class B felony. The trial court sentenced appellant to nine years to be served in the Tennessee Department of Correction. On appeal, appellant argues that the evidence at trial was insufficient to support his conviction. Following our review of the parties’ briefs, the record, and the applicable law, we affirm appellant’s conviction.

Defendant, Vernon Lavone Roberts, was indicted by the Davidson County Grand Jury for two counts of the sale of more than .5 grams of cocaine within 1000 feet of a school zone and two counts of the sale of more than 26 grams of cocaine within 1000 feet of a school zone. Subsequently, Defendant entered a guilty plea to four counts of the sale of cocaine outside of a school zone. He received a sentence of twenty-years for each conviction, with three sentences to be served concurrently with each other but consecutively to the fourth conviction for an effective forty-year sentence as a Range II multiple offender. On appeal, Defendant argues that the trial court erred by denying his motion to withdraw his guilty pleas based on his assertion that the pleas were not voluntarily or knowingly entered. After a thorough review of the record, we affirm the judgment of the trial court.

A Bedford County jury found the Defendant, Dejuan Koshief Roberts, guilty of aggravated assault, reckless endangerment, and being a felon in possession of a handgun. The trial court imposed an effective Range II thirteen-year sentence. The Defendant appeals claiming that the evidence is insufficient to support his convictions and that the State violated the rules of discovery. After a thorough review of the record, the briefs, and relevant authorities, we conclude that no error exists. Accordingly, we affirm the trial court’s judgments.

The mother of six children and the father of one of the children appeal the termination of their parental rights. The juvenile court terminated the mother’s parental rights on three grounds, substantial noncompliance with the permanency plans, persistence of conditions, and willful abandonment by incarceration,and upon the determination that termination of her parental rights was in the best interests of the children. The court terminated the father’s parental rights on the grounds of substantial noncompliance with the permanency plans, willful abandonment by failure to support and failure to visit, and the determination that termination was in the best interest of the child. Mother and father appeal. We affirm.

A Rutherford County jury convicted the Defendant, James M. Smith, of driving under the influence (“DUI”), driving on a suspended, cancelled or revoked license, two counts of leaving the scene of an accident, and reckless endangerment. The trial court Defendant stipulated that he had been convicted of DUI on at least three previous occasions, and the trial court sentenced him as a Range III, persistent offender, to six years in confinement followed by four years on probation. On appeal, the Defendant contends that: (1) the trial court erred when it denied his pretrial motion to continue his case; (2) the prosecutor made improper comments during opening and closing arguments; (3) a distraction during the jury deliberation likely caused a hurried and potentially incorrect verdict; and (4) the evidence is insufficient to sustain his convictions. After a thorough review of the record and applicable authorities, we conclude no error exists in the judgment of the trial court. The trial court’s judgments are, therefore, affirmed.

Plaintiff filed a timely claim with the Division of Claims Administration, which did not resolve the claim within the statutory period. The claim was transferred to the Claims Commission, and Plaintiff filed a complaint pursuant to the Claims Commission Rules. Much later, the State amended its answer to allege fault by the City of Clarksville. Plaintiff filed suit against the City. The suit was dismissed because the trial court found that the “original complaint” under Tenn. Code Ann. § 20-1-119 was not filed within a year of the alleged injury. Plaintiff appealed. We reverse.

A defendant appeals the award of punitive damages arising from the death of a patient at an assisted living facility, which the defendant managed. We affirm the trial court’s review of the Hodges factors and the due process analysis relating to the punitive damage award. We also affirm the trial court’s directed verdict making the defendant liable for the actions of the assisted living facility’s employees. We must modify the amount of the punitive damage award by reducing it to comply with the amount the plaintiff requested in the ad damnum clause of their complaint.

The defendant, Leonel Lopez, also known as Leonel Lopez Ramos, was convicted by a Davidson County Criminal Court jury of second degree murder and sentenced to twenty years as a violent offender in the Department of Correction. On appeal, he argues that: (1) the evidence is insufficient to sustain his conviction, and (2) the service of a convicted felon as the grand jury foreman invalidated the indictment against him as a matter of law. After review, we affirm the judgment of the trial court.

The petitioner, Daniel Eduardo Gonzalez, appeals the dismissal of his petition for post-conviction relief as time-barred. He argues that his trial counsel provided ineffective assistance for failing to advise him of the deportation consequences of his guilty plea as required by Padilla v. Kentucky, 559 U.S. 356 (2010), and that due process considerations should operate to toll the statute of limitations. Following our review, we affirm the summary dismissal of the petition.

This is a termination of parental rights case. Mother/Appellant appeals the trial court’s termination of her parental rights on grounds of abandonment by an incarcerated parent pursuant to Tennessee Code Annotated Section 36-1-113(g)(1) as defined at Tennessee Code Annotated Section 36-1-102(1)(A)(iv), and persistence of conditions pursuant to Tennessee Code Annotated Section 36-1-113(g)(3). Mother also appeals the trial court’s determination that termination of her parental rights is in the child’s best interest. Because there is clear and convincing evidence in the record to support the trial court’s decision, we affirm and remand.

The petitioner, Kenneth J. Meyer, appeals the denial of his petition for post-conviction relief from his 2008 Bledsoe County Circuit Court conviction of voluntary manslaughter, claiming that he was denied the effective assistance of trial counsel. Discerning no error, we affirm.

This is a direct appeal of an attorney disciplinary proceeding involving six complaints of professional misconduct. The trial court affirmed the hearing panel’s decision that the attorney had violated multiple Rules of Professional Conduct and should be disbarred from the practice of law. After review of the evidence presented and the applicable law, we affirm the judgment of the trial court.

This is a termination of parental rights case in which the Tennessee Department of Children’s Services filed a petition to terminate the parental rights of Mother to the Child. Following a bench trial, the trial court found that clear and convincing evidence existed to support the termination of Mother’s parental rights on the statutory grounds of persistence of conditions and mental incompetence and that termination of her rights was in the Child’s best interest. Mother appeals. We affirm the decision of the trial court.

The Petitioner, Juan A. Hill, appeals as of right from the Johnson County Criminal Court’s summary dismissal of his petition for writ of habeas corpus. The Petitioner contends that his judgment of conviction is void because it fails to reflect pretrial jail credit. Following our review, we affirm the judgment of the habeas corpus court.

The Defendant, Cameron Cook, was convicted by a Knox County jury of attempted first degree murder and employing a firearm during an attempt to commit a dangerous felony for which he received an effective sentence of thirty years confinement. In this appeal, the Defendant argues that the evidence is insufficient to sustain either conviction and that the trial court erred in refusing to charge the jury on voluntary intoxication. Upon review, we affirm the judgments of the trial court.

The defendant, Kevin Potter, appeals the Campbell County Criminal Court’s order revoking his probation and ordering him into confinement. Because the record supports the order, we affirm.

The defendant, Timothy Washington Lyons, appeals his resentencing to consecutive terms of fourteen years and six years for his convictions for attempted second degree murder and reckless aggravated assault. On appeal, the defendant argues that the trial court failed to make appropriate findings in support of its sentencing determinations. Based upon our review, we affirm the judgments of the trial court.

In accordance with Tennessee Supreme Court Rule 51, this workers’ compensation appeal has been referred to the Special Workers’ Compensation Appeals Panel for a hearing and a report of findings of fact and conclusions of law. Employee suffered compensable injuries to his lower back and right shoulder. Employer asserted that the permanent disability award for employee’s injury should be capped at one and one half times his impairment rating because employee had voluntarily resigned. Following a bench trial the trial court found that the statutory cap of one and one half times did not apply to employee’s permanent partial disability benefits because employee’s retirement was reasonably related to his workplace injury and therefore he did not have a meaningful return to work. Based on an impairment rating of eleven percent the trial court awarded 35 percent permanent partial disability benefits. We find there was a meaningful return to work and accordingly we reverse the trial court judgment.

A Shelby County jury found the Defendant, Larry McNutt, guilty of reckless endangerment and aggravated assault. The trial court merged the two convictions and ordered the Defendant to serve an effective fifteen-year sentence as a Career Offender. On appeal, the Defendant claims that: (1) the State solicited unfairly prejudicial testimony in violation of a pretrial ruling; (2) the trial court improperly admitted hearsay evidence; (3) the trial court improperly precluded the defense from cross-examining the victim about his desire not to prosecute the Defendant; (4) the trial court improperly admitted evidence of the defense witness’s prior convictions; (5) there is insufficient evidence to support the jury’s verdict; (6) his sentence is excessive; and (7) the cumulative effect of these errors violates his due process rights. After a thorough review of the record and applicable law, we affirm the trial court’s judgments and remand for correction of the reckless endangerment judgment form.

The Defendant, Curtis Word, challenges the trial court’s sentence of incarceration, alleging that nothing in the record overcame the presumption that he was a favorable candidate for alternative sentencing and requesting that this court place him on probation or community corrections. Upon consideration of the applicable authorities and the record, we affirm the judgment of the trial court.

The Defendant, William Avery McKnight, pleaded guilty to aggravated burglary and theft of property over $1000, with the trial court to determine the length and manner of the sentences. The trial court ordered the Defendant to serve an effective sentence of eight years in the Tennessee Department of Correction. The Defendant appeals, asserting that the trial court erred when it denied his request for alternative sentencing. After a thorough review of the record and applicable law, we affirm the trial court’s judgments.