APPELLATE COURT OPINIONS

The Defendant, Ronald Lee Stewart, appeals as of right from his convictions in the Marshall County Circuit Court for one count of aggravated burglary, a Class C felony, one count of theft of property valued at less than five hundred dollars, a Class A misdemeanor, and one count of theft of property valued between one thousand and ten thousand dollars, a Class D felony. The Defendant received an effective sentence of twelve years to be served in incarceration. In this appeal as of right, the Defendant claims that his convictions are constitutionally infirm due to juror fatigue and that the trial court erred in sentencing him as a persistent offender. Following our review, we conclude that the Defendant failed to prepare an accurate record of the subject of this appeal and his issues are waived. Accordingly, the judgments of the trial court are affirmed.

Employee received an award of workers’ compensation benefits for a 1994 injury that
aggravated a pre-existing condition, Legg-Perthes disease. He received medical care for the condition thereafter through workers’ compensation. In 2007, his treating physician recommended hip replacement surgery. The trial court found that the necessity for surgery was not caused by the original injury. Employee has appealed. We affirm the judgment.1

The Petitioner, Augustine J. Leon, pled guilty to evading arrest and reckless endangerment, both Class E felonies, and eleven other misdemeanor traffic offenses. The Petitioner received an effective sentence of two years as a Range I, standard offender, to be served in the Department of Correction consecutively to a previously imposed sentence of three years, for a total effective sentence of five years. The Petitioner filed a post-conviction petition attacking his convictions and sentence based upon his alleged mental incompetence at the time of the guilty plea, failure of the State and the trial court to disclose his mental illness, and the failure of trial counsel to seek a mental evaluation prior to the entry of his guilty pleas. The post-conviction court summarily dismissed the petition as time-barred. In this appeal as of right, the Petitioner argues that due process concerns necessitated tolling the statute of limitations for filing his petition, and therefore the post-conviction court improperly dismissed the petition. Following our review, we affirm the judgment of the post-conviction court.

Certiorari proceeding in which an inmate seeks review of disciplinary board proceeding finding him guilty of assault on another inmate and revoking his sentence reduction credits. Petitioner asserts that disciplinary board acted arbitrarily and illegally in its utilization and application of Tennessee Department of Correction policies and, further, that the disciplinary board’s handling of the hearing violated his rights to due process of law. Finding no error, we affirm the decision of the trial court.

This appeal concerns an attempt to obtain the discharge of a debt. The plaintiff attorney executed two promissory notes in favor of the defendants financial institutions. The notes called for monthly payments. Just over a year later, the plaintiff mailed correspondence and a check to the institution’s payment processing center. The correspondence offered an amount in excess of the monthly payment in exchange for extinguishing each debt. At the payment center, the envelopes were opened by machine and the correspondence was separated from the checks. The checks were posted to the plaintiff’s account. The correspondence was forwarded to another department. The plaintiff made no more payments on the notes, and then filed a complaint for declaratory relief. The defendants answered and counterclaimed for the amount owed under the note. After conducting a bench trial, the trial court dismissed the complaint, granted a judgment on the counterclaim to the defendants, and awarded attorney’s fees. The plaintiff appeals. We affirm.

A Trust was created in 1985. In both 1997 and 1999, the grantor consented to the use of the Trust’s stocks for the benefit of a separate entity, of which the Trust owned a one-half interest. In 2001, an agreement was entered whereby the Trust’s stocks were pledged to a bank in return for a loan to the Trust. The Trust then transferred the loan monies to the separate entity to pay off the separate entity’s indebtedness. After the Trustee’s resignation, the successor Trustee brought suit, alleging breach of fiduciary duties, civil conspiracy, and misappropriation and conversion. The trial court granted the defendants’ motion to dismiss, finding that they had not engaged in unlawful conduct. Plaintiff appeals, and we affirm.

The petitioner, Nakomis Jones, appeals the post-conviction court’s denial of his petition for postconviction relief, arguing that he received the ineffective assistance of counsel at trial and on appeal. Following our review, we affirm the post-conviction court’s denial of post-conviction relief.

This appeal involves Tennessee’s savings statute. The plaintiff filed a tort lawsuit against the defendant. During the pendency of the action, the defendant died. The plaintiff did not file a motion to substitute the proper party for the deceased defendant, as required under T.R.C.P. 25.01. The lawsuit was not dismissed on that basis. The trial court allowed the plaintiff to take a voluntary nonsuit. The plaintiff re-filed the instant lawsuit within one year, making the same allegations as in the original action but naming the estate of the decedent as the defendant. The estate filed a motion to dismiss, arguing that the savings statute was inapplicable because the original lawsuit should have been dismissed pursuant to T.R.C.P. 5.01 for failure to substitute the proper party, and because the defendants in the original lawsuit and the re-filed lawsuit were not identical. The trial court granted the estate’s motion to dismiss on both grounds. The plaintiff now appeals. We reverse, finding that the estate’s argument that it is not an entity capable of being sued has been waived, and concluding that the trial court erred in determining that the savings statute was inapplicable.

This appeal involves a complaint for breach of contract filed by a corporation that had been administratively dissolved prior to the date of the contract. The defendants filed a motion to dismiss, claiming that the plaintiff-corporation lacked capacity and/or standing to bring the suit. The plaintiff then filed a motion to amend, seeking to have the corporation’s founder substituted as the party plaintiff. The trial court denied the motion to amend and dismissed the complaint. We affirm.

The defendant, Michelle Bishop, pleaded guilty in the Sullivan County Circuit Court to three counts of theft of property valued at $500 or less, one count of theft of property valued at $1,000 or more but less than $10,000, two counts of identity theft, two counts of forgery, and one count of failure to appear in exchange for an effective sentence of five years with the manner of service of the sentence to be determined by the trial court. The trial court ordered a fully incarcerative sentence, and the defendant now appeals, claiming she should have been granted probation or other alternative sentencing. Discerning no error, we affirm the judgments of the trial court.

This is a 42 U.S.C. § 1983 claim based on alleged etaliation in violation of the First Amendment. Appellant claims that Appellees retaliated against her in her employment for speaking out against a hospital policy. Appellees assert the defense of qualified immunity. Appellant appeals from the trial court’s decision to grant summary judgment and judgment on the pleadings to the Appellees. Finding that there are material issues of fact in dispute, we reverse the trial court’s grant of summary judgment. Further, we find that Appellant has stated a claim upon which relief may be granted and, therefore, reverse the trial court’s decision to grant Appellees’ motion for judgment on the pleadings. Affirmed in part, reversed in part and remanded.

After the entry of a best-interest plea to felony child abuse, a Fentress County trial court denied judicial diversion for Appellant, Alfred Gene Bullock. The trial court sentenced Appellant to three years as a Range I, standard offender. Appellant appeals the denial of judicial diversion. After a review of the record, we determine that the trial court considered the factors required for the grant or denial of judicial diversion and did not abuse its discretion in denying judicial diversion to Appellant. Accordingly, the judgment of the trial court is affirmed.

The defendant, Reginald Marcel Gibbs, was convicted by a Davidson County Criminal Court jury of aggravated robbery, a Class B felony, and pled guilty to possession of drug paraphernalia, a Class A misdemeanor, and felon in possession of a handgun, a Class E felony. He was sentenced to fifteen years as a Range II offender on the aggravated robbery conviction; eleven months, twenty-nine days on the possession of drug paraphernalia conviction; and five years as a Range III offender on the felon in possession of a handgun conviction. The court ordered that the fifteen and five-year sentences be served consecutively for an effective term of twenty years in the Department of Correction. On appeal, the defendant challenges the sufficiency of the convicting evidence and the sentence imposed by the trial court. After review, we affirm the judgments of the trial court.

The defendant, Ronald Stephen Blodgett, entered an open plea of guilty in the Marshall County Circuit Court to the offense of driving after being declared a habitual motor vehicle offender, a Class E felony. The trial court sentenced the defendant to six years in the Tennessee Department of Correction as a career offender. On appeal, the defendant argues that the trial court should have ordered that he serve his sentence in community corrections. After review, we affirm the judgment of the trial court.

A teacher was injured when she tried to break up a fight among students. The BOE classified her injury as resulting from an accident rather than from a physical attack, and that determination was upheld by the Board of Appeal, whose determination was final. The teacher filed suit in the chancery court alleging breach of contract, but her complaint was dismissed after the trial court found that no breach had occurred and that it lacked subject matter jurisdiction. The proper vehicle for reviewing the Board of Appeal’s classification was a writ of certiorari. Because the teacher failed to file such a petition, we affirm the trial court’s dismissal.

The plaintiffs/appellants in this lawsuit, an adult cabaret and three female employees of adult entertainment businesses and cabarets, filed a defamation suit against a county commissioner for a statement allegedly quoted in The Commercial Appeal and repeated at other venues.¹ The county commissioner raised several defenses to the plaintiffs’ claim in a motion to dismiss or, in the alternative, for summary judgment. On consideration of the motion to dismiss, the trial court found as a matter of law that the plaintiffs could not prove their claim and dismissed their complaint. We affirm.

The petitioner, Jasper Lee Vick, appeals the Hardeman County Circuit Court’s summary dismissal of his petition for writ of habeas corpus. The State has filed a motion requesting that we affirm the lower court’s judgment pursuant to Rule 20 of the Rules of the Court of Criminal Appeals. Because the petitioner has failed to establish that his convictions are void or his sentences illegal, we conclude that the State’s motion is well-taken. Accordingly, we affirm the summary dismissal of the petition.

The plaintiff ballplayer was hit by a baseball while sitting outside the dugout during a school baseball game. He sued the schools and the Tennessee Secondary School Athletic Association (“TSSAA”) for failing to enforce the rules against his conduct. The trial court granted summary judgment to the TSSAA because the umpires were not agents of the TSSAA. The plaintiff appealed and we affirm.

Insurer filed an action seeking a declaratory judgment that it was not required to provide coverage to insured in lawsuit filed against insured; insured filed a counter-complaint against insurer. At the close of all proof, the trial court directed a verdict in favor of insured on insurer’s declaratory judgment action and directed a verdict in favor of insurer on insured’s counterclaims of misrepresentation, bad faith, estoppel, and punitive damages. Insured’s two remaining counterclaims were submitted to the jury, which returned a verdict in favor of insured for Tennessee Consumer Protection Act (“TCPA”) and breach of contract claims. Trial court subsequently awarded insured double damages and attorney’s fees under the TCPA. On appeal, both parties raise numerous issues with the judgment of the trial court, some of which are without merit or as to which no relief can be granted; such issues are dismissed. We reverse the award of double damages, vacate the award of counsel fees to the insured and remand for further consideration. In all other respects the judgment is affirmed.

This appeal involves insurance coverage. The plaintiffs purchased an undeveloped parcel of real property and hired a contractor to build a house on it. After the house was constructed, the plaintiffs discovered that cleared timber was buried underneath the land on which the house stood. Thereafter, the house developed structural problems, such as foundation cracks and non-alignment of doors and windows. The plaintiffs made a claim for coverage under their homeowners insurance policy; however, the insurer denied the claim, citing an exclusion of coverage for damages resulting from settling. The plaintiffs filed suit against inter alia the insurer alleging breach of contract and bad faith, and the plaintiffs and the insurer filed cross-motions for summary judgment. After conducting a hearing on the matter and considering expert testimony that the damage was caused by settling, the trial court granted the insurer’s motion for summary judgment. The plaintiffs now appeal, arguing that the settlement in this case is so excessive as to remove it from the ordinary meaning of the term “settling.” We affirm.

The Defendant, Donald Ragland, was convicted by a jury of one count of first degree premeditated murder. See Tenn. Code Ann. § 39-13-202. He was sentenced to life, with the possibility of parole, in the Department of Correction. In this direct appeal, he contends that: (1) the trial court erred in denying his motion to suppress a statement he made to police; (2) the trial court erred in excluding a certified copy of a traffic citation received by the Defendant’s alibi witness; and (3) the State presented evidence insufficient to convict him. After our review, we affirm the judgment of the trial court.

The petitioner, Monolito B. Cooper, filed a petition for a writ of habeas corpus, alleging that his 1999 and 2002 sentences have expired due to the application of certain pretrial jail credits. The trial court denied the petition, and the petitioner appealed. Upon review, we affirm the judgment of the trial court.

The Defendants, Derrell F. Nunn, Sr. and Jamila Nunn, appeal from their convictions by a jury in the Criminal Court for Hamilton County for aggravated child abuse, a Class A felony. The trial court imposed a sentence of twenty years to be served at one hundred percent for each Defendant. On appeal, the Defendants contend that the evidence presented at trial was insufficient to convict them and that the trial court erred in not granting their motions for judgment of acquittal. We affirm the judgments of conviction.

This appeal involves competing class action lawsuits. The plaintiff/appellant filed a lawsuit in Tennessee on behalf of similarly situated consumers in Tennessee, asserting antitrust claims against various urethane manufacturers. Meanwhile, a separate class action was filed in Florida against some of the same manufacturers, asserting similar misconduct throughout the United States. The class in the Florida lawsuit included consumers in twenty-five states, including Tennessee. The Florida litigation settled, and the Florida court approved a plan to provide notice of the pending settlement to all class members. The notice plan did not include individual notice to the Tennessee plaintiff. The Florida notice plan was implemented. The Florida court then entered an order approving the settlement, finding that the notice plan satisfied the requirements of due process and gave class members the best notice practicable under the circumstances. Subsequently, in the instant Tennessee proceedings, the manufacturers filed a motion for summary judgment, asserting that the doctrine of res judicata prohibited relitigation of the matters settled in the Florida case. The trial court granted summary judgment in favor of the defendant manufacturers. The plaintiff/appellant appeals, arguing that the Florida notice was insufficient because he did not receive individual actual notice. We affirm, finding that the Tennessee lawsuit is barred by the doctrine of res judicata.