APPELLATE COURT OPINIONS

I concur with the Court’s conclusion that the evidence does not preponderate against the trial court’s finding that Ready Mix, USA, LLC’s activities on its property established pre-existing use and, therefore, qualify for protection under Tenn. Code Ann. § 13-7-208 (2011). I base my decision entirely on our prior precedents construing Tenn. Code Ann. § 13-7-208 without any consideration, directly or indirectly, of the diminishing assets doctrine.
 

This action arises from an automobile accident. The trial court granted Defendant’s motion for a directed verdict on Plaintiff’s claim for damages for medical expenses at the close of proof. The jury returned a verdict in favor of Defendant on Plaintiff’s claim for pain and suffering and loss of earning capacity. On appeal, Plaintiff asserts the trial court erred by granting the directed verdict on his claim for medical expenses. We reverse and remand for further proceedings.

A Jefferson County jury convicted appellant, Brandon Sean Sutton, of first degree murder, and he received a sentence of life without the possibility of parole. On appeal, appellant argues that (1) the evidence was insufficient to sustain his conviction; (2) the trial court erred when it admitted certain photographs; (3) emotional displays from the victim’s family violated his right to a fair trial; (4) the evidence did not support the sentence of life without parole; (5) the victim impact evidence was improper; and (6) the trial judge did not follow proper procedure when selecting the manner in which he removed alternate jurors. After reviewing the record, the parties’ briefs, and the applicable law, we affirm the judgment of the trial court.

The capital Petitioner, William Glenn Rogers, appeals as of right from the post-conviction court’s order denying his initial and amended petitions for post-conviction relief challenging his merged first degree murder conviction and death sentence for the killing of nine-year-old Jacqueline Beard, as well as his convictions for especially aggravated kidnapping, rape of a child, and two counts of criminal impersonation. The Petitioner received an effective sentence of forty-eight (48) years’ imprisonment for his non-capital offenses. On appeal, the Petitioner claims that the post-conviction court erred in denying relief because defense counsel provided ineffective assistance in both the trial and appellate proceedings related to these convictions and sentences and because multiple other constitutional violations call into question the validity of these convictions and sentences. After a careful and laborious review of the record, we affirm the denial of post-conviction relief.

In this action, the plaintiff has attempted to assert claims for ordinary negligence and medical malpractice against nursing home defendants by filing two separate actions and then seeking to consolidate the cases or to amend the complaint to assert both types of claims in one case. The first complaint filed only asserted claims for ordinary negligence against the nursing home defendants. Sixty days after having given the statutory notice to the healthcare providers of her intent to file medical malpractice claims, the plaintiff commenced a separate action against the same nursing home defendants and an additional defendant, a physician who treated the nursing home patient, by filing a complaint for medical malpractice. Upon motions of the nursing home defendants, the trial court refused to consolidate the cases, dismissed the medical malpractice claims against the nursing home defendants upon the ground of a prior suit pending, and denied the plaintiff’s motion to amend the complaint in the first case to add claims for medical malpractice against the nursing home defendants. Having determined that the plaintiff complied with Tennessee Code Annotated § 29-26121(a) by giving the requisite 60 days notice to the medical providers and that the statute of limitations had not run, we have concluded that the trial court erred in denying the plaintiff’s Tennessee Rule of Civil Procedure 15.01 motion to amend the complaint. Accordingly, we reverse and remand with instructions to grant the plaintiff’s motion to amend the complaint for ordinary negligence against the nursing home defendants thus allowing the plaintiff to assert medical malpractice claims against the nursing home defendants and for further proceedings consistent with this opinion.
 

Defendant, Jonathan Austin, was indicted by the Greene County Grand Jury for one count of aggravated assault, a Class C felony. Following a jury trial, Defendant was convicted as charged. On appeal, Defendant argues that the evidence at trial was insufficient to support his conviction. After a careful review of the record, we affirm the judgment of the trial court.

The Defendant, Curtis Harper, was found guilty by a Shelby County Criminal Court jury of attempt to commit second degree murder, a Class B felony, employing a firearm during the commission of a felony, a Class C felony, and two counts of aggravated assault, a Class C felony. See T.C.A. §§ 39-13-210(a)(1) (2010), 39-12-101(a) (2010), 39-17-1324 (Supp. 2008) (amended 2009), 39-13-102(a)(1)(A) (2006) (amended 2009, 2010, 2011). The trial court merged the aggravated assault convictions into the attempted second degree murder conviction, and sentenced the Defendant as a Range I, standard offender to twelve years’ confinement for attempted second degree murder and six years for employing a firearm during the commission of a felony. The trial court ordered the sentences to be served consecutively, for an effective eighteen-year sentence. On appeal, the Defendant contends that the evidence is insufficient to support his conviction for attempted second degree murder. We affirm the Defendant’s convictions, but we vacate the aggravated assault and attempted second degree murder judgments and remand the case for entry of a corrected judgment reflecting the merger of the aggravated assault convictions into the conviction for attempted second degree murder.

The Defendant, Kendell Edward Johnson, appeals from his jury conviction for second degree murder, for which he received a fifteen-year sentence. In this direct appeal, the Defendant argues (1) that the trial court erred by admitting the redacted recording of a conversation between the Defendant and his father made at the police station following the Defendant’s arrest on an unrelated charge, (2) that the trial court erred by permitting the irrelevant testimony of the victim’s brother, and (3) that the evidence was insufficient to support his conviction. After a thorough review of the record and the applicable authorities, we affirm the judgment of the trial court.

This is a condemnation case.  The trial court granted summary judgment in favor of Appellees, the landowners, finding that Appellant MLGW's attempted condemnation was not necessary. The evidence clearly establishes that MLGW had the right to take, and that the taking was for a public purpose. Therefore, the burden fell to Appellees to show that MLGW’s taking was arbitrary or capricious. The evidence contained in the record does not establish that the taking was arbitrary or capricious with the result being that the condemnation is “conclusive upon the court.” Because the court considered necessity and location in contravention of MLGW’s condemnation power, we reverse the grant of summary judgment and remand to the trial court.

Appellant, Roger Harper, was convicted by a Montgomery County jury of evading arrest. The trial court sentenced Appellant as a Range I, standard offender to three years and six months. The trial court set the sentence to run consecutivelyto a five-year diversion sentence imposed under Tennessee Code Annotated section 40-35-313 that Appellant was serving from another case. On appeal, Appellant argues that the trial court erred because: (1) the jury failed to specify that it found the aggravating factors required to find Appellant guilty of a Class D felony and furthermore, the trial court sentenced Appellant as if the conviction was a Class D felony; (2) Appellant’s sentence is excessive due to the presence of mitigating factors that the trial court failed to find; and (3) the trial court erred in imposing consecutive sentencing. We have reviewed the record on appeal and conclude that the trial court committed no error. However, the judgment form must be corrected to reflect that Appellant was convicted of the Class D felony. Therefore, we affirm Appellant’s conviction and sentence but remand for the trial court to enter a corrected judgment.

This is a divorce case that focuses on the parties’ debt and the issue of attorney’s fees. The trial court dissolved the marriage of Lori Anne Yattoni-Prestwood (“Wife”) and John Stewart Prestwood (“Husband”). During their brief time together, the parties accumulated only debt, no assets. Husband’s liability for the parties’ debts was discharged in bankruptcy. In considering the issue of property division and allocation of debt, the trial court found that expenditures made by Wife to and for Husband’s benefit, both before and during the marriage, were “gifts” to him; accordingly, the court declined to treat the after-marriage payments as marital obligations. Instead, the court decreed that each party would be responsible for that party’s “own respective liabilities.” Wife appeals and contends that the trial court erred in failing to properly classify and equitably divide the marital debt and in denying, after first approving, her request for an award of attorney’s fees. She also seeks an award of her fees for legal work on appeal. We modify the judgment as it pertains to the parties’ debt in a way that results in an alimony in solido award to Wife. As additional alimony in solido, we award Wife her reasonable attorney’s fees for work at the trial court level. We further grant Wife’s request for an award of her attorney’s fees incurred for work on appeal as further alimony in solido. In all other respects, the judgment is affirmed.

The defendant, Mauricio Morales, appeals his Davidson County Criminal Court jury convictions of three counts of rape of a child, one count of aggravated sexual battery, and one count of aggravated burglary, claiming that the evidence was insufficient to support his convictions, that the trial court erred by admitting certain evidence, that the trial court erred in its instructions to the jury, and that the 100-year effective sentence is excessive. Discerning no error, we affirm the judgments of the trial court.

This case arises from an accident involving two semi-trucks. The truck owned by Appellee trucking company rear-ended the truck driven by Appellant, causing injury to Appellant’s back. Litigation ensued and the Appellee filed a motion in limine to exclude portions of Appellant’s medical expert’s testimony concerning Appellant’s possible future need for surgery and the costs thereof. The trial court granted the motion, and Appellant appeals. Discerning no error, we affirm

The petitioner, Laura June Bowling, filed a timely pro se petition for post-conviction relief challenging her guilty-pleaded conviction of second degree murder for which she received a sentence of 15 years’ incarceration. Following the appointment of counsel and the exhaustion of the one-year limitations period, the petitioner entered into an agreed order with the State withdrawing her petition. The post-conviction court then dismissed the petition with prejudice. The petitioner now appeals the dismissal order, alleging that her withdrawal of the petition was unknowingly and involuntarily entered. Discerning no error in the postconviction court’s dismissal, we affirm the order of the post-conviction court.

Teresa Holt and Archie J. Holt (“Plaintiffs”) sued The Dollywood Company, a joint venture between Dolly Parton Productions, Inc. and Herschend Family Entertainment Corp. (“Defendant”) with regard to injuries Ms. Holt received as a result of her fall on a Dollywood tram. Defendant filed a motion for summary judgment. After a hearing, the Trial Court granted Defendant summary judgment finding and holding, inter alia, that Ms. Holt’s own negligence was the primary cause of her fall and that Ms. Holt was at least 50% at fault. Plaintiffs appeal to this Court. We find and hold that a reasonable jury could find that Ms. Holt was less than 50% at fault. We, therefore, reverse the Trial Court’s judgment and remand for further proceedings.

Decedent’s adult daughter and three adult grandchildren appeal from the trial court’s judgment that the grandchildren are not entitled to survivor pension benefits under decedent’s employee pension plan. Summary judgment was appropriate because there are no genuine issues of material fact and because there exists no legal basis on which to extend survivor pension benefits to the grandchildren. We affirm.
 

A defendant was sentenced following his conviction on two counts of first degree murder and nine counts of attempted first degree murder. Eighteen days later, his attorney filed a motion requesting a new trial and withdrew as counsel. The motion contained no specific grounds for relief. The trial court appointed replacement counsel. Several months later, replacement counsel amended the motion for new trial to allege specific grounds for relief. The trial court denied the amended motion for new trial. The Court of Criminal Appeals held that the original motion for new trial was a nullity because it contained no grounds for relief and that the trial court therefore did not have jurisdiction to permit the amendment of the motion for new trial. The Court of Criminal Appeals therefore considered the defendant’s specific grounds for relief as waived. We hold that the original motion for new trial met the requirements of Tennessee Rule of Criminal Procedure 33 despite its failure to allege specific grounds for relief and that the trial court retained jurisdiction to permit the amendment of the motion. The cause is remanded to the Court of Criminal Appeals to consider the defendant’s appeal of the denial of his amended motion for new trial.
 

This case began when the original plaintiffs filed a complaint to quiet title seeking a declaration of the boundary line separating their land from the defendants’ neighboring property. The disputed line is the northern boundary of the plaintiffs and the southern boundary of the defendants. The defendants asserted in their answer that they had adversely possessed the disputed property. Shortly after this action was filed, the plaintiffs’ property was sold to a third party in a court-ordered sale. The purchaser was substituted as the sole plaintiff in place and instead of the original plaintiffs. The defendants moved that the case be dismissed on the ground that the sale to the new owner was champertous. The court denied the motion and conducted a trial on the merits after which it entered judgment in favor of the remaining plaintiff. The defendants appeal. We affirm.

Father was found guilty of five counts of criminal contempt for his failure to pay child support and was sentenced to 50 days in jail. On appeal, Father argues the trial court failed to make the requisite finding regarding his ability to pay. We have determined that the evidence established beyond a reasonable doubt that Father did have the ability to pay the child support obligation, but that the maximum sentence is not appropriate based on the circumstances. Accordingly, we affirm the judgment of the trial court with modifications to Father’s sentence. We also award Mother attorney fees for this appeal and remand the case to the trial court for a determination of the appropriate amount.
 

A patient discovered that a guide wire had been left in her vein during a prior medical procedure. She filed a medical malpractice action against the doctors who performed the procedure and the hospital where the procedure was performed. The patient voluntarily dismissed the medical malpractice suit pursuant to Tennessee Rule of Civil Procedure 41 when she was informed that another party was responsible for the presence of the guide wire. The doctors named in the original suitf iled a malicious prosecution action against the patient. The patient filed a motion for summary judgment alleging that the doctors could not prove that the prior suit had been terminated in their favor. The trial court denied the motion for summary judgment, and the Court of Appeals affirmed the trial court’s denial. We hold that a voluntary nonsuit taken pursuant to Tennessee Rule of Civil Procedure 41 is not a favorable termination on the merits for purposes of a malicious prosecution claim. We reverse the Court of Appeals and remand to the trial court for entry of summary judgment in favor of the patient and for further proceedings consistent with this opinion.

This is an appeal from the trial court’s order, setting aside certain transfers by decedent to Appellant. Decedent and Appellee were married, but had been separated for over twenty years. Before his death, Decedent transferred certain property to his paramour, the Appellant herein. When Decedent died, Appellee, his surviving, but estranged spouse petitioned the court to set aside the transfers to Appellant under Tennessee Code Annotated Section 31-1-105. The trial court made certain findings from the bench, but the trial court did not incorporate these oral findings into its order as required under Tennessee Rule of Civil Procedure 52.01, and specifically made no finding that Decedent acted fraudulently or with intent to deprive Appellee of her share of the estate as required for application of Tennessee Code Annotated Section 31-1-105. Accordingly, we vacate and remand to the trial court for further proceedings.

The trial court awarded summary judgment to Defendant on Plaintiff’s claim for property damages arising from a motor vehicle collision, finding that Plaintiff did not own the vehicle allegedly damaged. On appeal, Plaintiff asserts the trial court erred by awarding summary judgment to Defendant where ownership of the vehicle is a genuine issue of material fact. We reverse the award of summary judgment and remand for further proceedings.

The dispute in this case is between siblings over whether an express trust was created at or before the mother, after the father's death, deeded the remainder of the parents' property to four of the children. Plaintiffs claim the four defendants created an oral express trust by agreeing to share the farm equally among all the children upon the mother's death. The Trial Court granted defendants summary judgment and plaintiffs have appealed. We vacate the Trial Court's Judgment on the grounds that there is disputed material evidence as to whether or not an express trust was created among the parties.

This is an interlocutory appeal from a trial court’s grant of a motion to compel arbitration. The mother executed a power of attorney in favor of the plaintiff daughter. Subsequently, the daughter signed documents on her mother’s behalf for admission into the defendant nursing home. The documents included an agreement to arbitrate any disputes with the nursing home. After the mother died, the daughter filed this wrongful death lawsuit against the nursing home. The nursing home filed a motion to stay the lawsuit and compel arbitration; this motion was granted. The daughter was then granted permission for this interlocutory appeal, on the issue of whether the power of attorney gave the daughter authority to sign the arbitration agreement and waive her mother’s right to a jury trial. Interpreting the language in the power of attorney document, we find that the daughter had authority to execute the nursing home admission documents, including the arbitration agreement, only if, in the opinion of her physician, the mother was “incompetent or incapable of action” for herself. Therefore, we reverse and remand for further proceedings.
 

Claimant, the wife of decedent, filed a claim against his estate claiming that she loaned her husband monies over time, and his estate was indebted to her for the amount of the loans. The Trial Court heard testimony on the claim, and held that claimant failed to meet her burden of proof to establish that she had loaned monies to her husband. Claimant appealed, and we affirm the Trial Judge on the ground that the evidence does not preponderate against the Trial Court's factual determinations.