APPELLATE COURT OPINIONS

I concur in the majority’s decision to affirm the judgment of the Trial Court granting summary judgment to Tennessee Protection Agency (“T.P.A.”). I, however, do not concur with the majority’s determination that the T.P.A. owed no duty to the Plaintiff other than to refrain from gross negligence or willful misconduct.

This negligence action arose from a gunshot injury suffered by the plaintiff, Mr. Greene, when he was a customer at the co-defendant’s night club in Nashville. The shooter was never identified. Mr. Greene filed suit against the night club and the agency providing security at the club, claiming that the security agency was negligent in allowing an individual into the club with a weapon.1 The defendant security agency moved for summary judgment. After a hearing, the trial court granted summary judgment in favor of the defendant security agency, holding that the agency affirmatively negated an element of Mr. Greene’s claim by refuting his allegation that a security guard accepted a bribe and by showing that the agency did not breach any duty to Mr. Greene. The plaintiffs timely appealed. We affirm.

The defendant, Mark Alan Deakins, appeals the revocation of his probation, claiming that the State failed to establish a probation violation by substantial evidence. Because the record establishes that the defendant violated the terms of his probationary sentence, we affirm the judgment of the trial court.

Petitioner, Eric Tyreese Davis, appeals the post-conviction court’s dismissal of his postconviction petition in which Petitioner alleged that his trial counsel rendered ineffective assistance of trial counsel in connection with the entry of his pleas of guilty, and that his guilty pleas were not voluntarily or knowingly entered. After a thorough review we affirm
the judgment of the post-conviction court.

In this action for declaratory judgment against the City of LaFollette, the City Council, and three City Councilmen, the trial court awarded the plaintiff attorney’s fees, costs and discretionary costs. On appeal, the defendants argue that the trial court erred in finding the plaintiff as the “prevailing party” in the litigation and that the trial court’s award was unwarranted and erroneous. We hold that the plaintiff was not a prevailing party, and therefore, the trial court erred in awarding the plaintiff attorney’s fees and costs on that basis.

The defendant, Mark Anthony Haynes, pled guilty in the Bedford County Circuit Court to three counts of violation of the sex offender registry law, a Class E felony, and was sentenced to consecutive terms of one year, six months for each offense, for a total effective sentence of four years and six months in the Department of Correction. On appeal, he argues that the trial court erred by denying his request for alternative sentencing. Following our review, we affirm the judgments of the trial court.

I concur with the majority with one exception. The majority holds that by failing to notify Mr. Dyer of his right to convert, Hill Services was the cause of any damages resulting from the first policy not being converted. The majority goes on to say that “[t]he final element of a negligence action is damages. In a case where the duty to notify of the right to convert has been breached, damages equal the amount the insurance policy would have been converted to.” The majority reverses the decision of the trial court finding that there was no duty to notify Mr. Dyer of the right to convert, and remands for an evidentiary hearing on the issue of damages.

After a jury trial, the Defendant, Richard Ferrell, was convicted of driving on a suspended license. The trial court subsequently sentenced the Defendant to a term of six months, with sixty days of the sentence to be served in the county jail followed by supervised probation. In this direct appeal, the Defendant argues that the evidence is insufficient as a matter of law to support his conviction and that the trial court erred by ordering him to serve sixty days in incarceration. Following a review of the sparse record presented on appeal, we affirm the judgment of the trial court.

This appeal arises from a dispute between Appellant employee and Appellee employer over life insurance coverage under a group insurance policy. Employee asserts that employer was
negligent in failing to inform employee of his right of conversion under the insurance policy and also in its failure to obtain insurance coverage for him after he was rehired. In the alternative, employee argues that the doctrine of equitable estoppel should apply. The trial court dismissed the complaint based upon its finding that employee failed to make out a
prima facie case for negligence, and declined to apply equitable estoppel. Finding negligence by the employer in failing to notify employee of his right to convert, we reverse the trial court’s dismissal of that claim and remand for further proceedings. We affirm the decision of the trial court finding that the employer was not negligent in obtaining new insurance for the employee after he was rehired and its decision not to apply equitable estoppel.

The Defendant, Deborah Jo Orr, was charged with one count of driving under the influence (fourth offense), one count of driving on a revoked license (first offense), one count of violating the implied consent law, and one count of possession of drug paraphernalia. Following a jury trial, she was convicted as charged. In this direct appeal, she contends that the State presented evidence insufficient to convict her of driving under the influence. After our review, we affirm the judgments of the trial court.

Defendant, Kenneth L. Peachman, along with seven co-defendants, was indicted in count one of the indictment for first degree, premeditated murder. The co-defendants’ cases are not part of this appeal. Defendant entered a plea of guilty in count one to the lesser included offense of second degree murder, with sentencing left to the discretion of the trial court. Pursuant to the negotiated plea agreement, the State agreed to enter a nolle prosequi as to the remaining counts of the indictment. Defendant filed a pro se motion to withdraw his plea of guilty before sentencing, which was denied by the trial court. Following a sentencing hearing, the trial court sentenced Defendant, as a Range One, standard offender, to twenty-four years, six months. On appeal, Defendant argues that the trial court erred in denying his motion to withdraw his plea of guilty, and that the trial court erred in its sentencing determinations. After a thorough review, we affirm the judgment of the trial court.

The Appellant, Rudolph Powers, appeals the trial court's summary dismissal of his petition for habeas corpus relief. The Appellant failed to assert a cognizable claim for which habeas corpus relief may be granted. Accordingly, the judgment of the trial court is affirmed.

A Sevier County jury convicted the Petitioner, Michelle Tipton, of felony murder, robbery, and second-degree murder, and the trial court imposed a life sentence. On direct appeal, this Court reversed the second-degree murder conviction, merged the robbery conviction with the felony murder conviction, and affirmed the life sentence. The Petitioner filed a petition for post-conviction relief claiming she received the ineffective assistance of counsel. The post-conviction court denied relief after a hearing, and the Petitioner now appeals. After a thorough review of the record and applicable law, we affirm the judgment of the post-conviction court.

The Defendant, Ramone Pierre Gholston, was convicted by a Montgomery County jury of facilitation of first degree murder, a Class A felony, and facilitation of especially aggravated robbery, a Class B felony. The trial court sentenced the Defendant as a Range I, standard offender to twenty-one years for the facilitation of first degree murder and to ten years for the facilitation of especially aggravated robbery, to be served concurrently. On appeal, the Defendant contends that his sentence for the facilitation of first degree murder is excessive. Because no written waiver of ex post factor rights signed by the Defendant is in the record, the Defendant was improperly sentenced under the 2005 amendments to the Sentencing Act of 1989. We reverse the judgment of the trial court, and we remand the case for resentencing.

The defendant, Darren Brown, was convicted by a Shelby County Criminal Court jury of first degree premeditated murder and sentenced to life imprisonment. On appeal, he argues that (1) the evidence was insufficient to sustain his conviction; (2) the trial court erred in denying his motion for mistrial in light of the prosecutor’s improper closing argument; and (3) the State’s comment on the defendant’s post-arrest silence constitutes plain error. Following our review, we affirm the judgment of the trial court.

The petitioner, Tyrice L. Sawyers, filed in the Davidson County Criminal Court two petitions for post-conviction relief. The post-conviction court dismissed both petitions as untimely, and the petitioner appeals. Upon review, we affirm the judgments of the post-conviction court.

The petitioner, Alvis Leroy Sadler, appeals from the denial of his petition for post-conviction relief. In this appeal, he asserts that he was denied the effective assistance of counsel and that he did not knowingly and voluntarily plead guilty. Discerning no error, we affirm the judgment of the post-conviction court.

The petitioner, Christopher N. Orlando, appeals from the summary dismissal of his petition for post-conviction relief. Holding that the petition is time-barred, we affirm.

Two residents of the Edgehill neighborhood of Nashville, as well as an organization of neighborhood residents, filed petitions for writ of certiorari with the aim of preventing the Metropolitan Government of Nashville and Davidson County from entering into a lease agreement with Belmont University. The same parties also brought a petition for declaratory judgment challenging the lease. The proposed lease provided that the University would construct an extensive sports complex in a public park located in the petitioners’ neighborhood for the use of the University as well as local schools and neighborhood residents. The first petition was filed after a public meeting at which the Metro Parks Board recommended that the lease be adopted, but before it was actually approved by the Metro Council. The trial court dismissed it without prejudice as premature. Subsequent petitions were filed after the Metro Council voted to approve the lease. The petitioners argued that the process the Parks Board  followed was arbitrary and capricious, that it deprived them of their right to procedural due process, and that the action of the Metro Council was invalid because it was based on a flawed process of recommendation. The trial court dismissed all the petitioners’ claims. Because the Board’s recommendation was not a final order or judgment resulting from the exercise of judicial functions, and because the record showed that there was a rational basis for the Metro Council’s decision, we affirm the trial court.

This is a termination of parental rights case. Father/Appellant appeals the trial court’s order, terminating his parental rights to four of his biological children. The trial court terminated Appellant’s parental rights upon its finding, by clear and convincing evidence, that Appellant had abandoned the children by engaging in conduct prior to his incarceration that exhibits a wanton disregard for the welfare of the children, that there is a persistence of conditions, and that termination of Appellant’s parental rights is in the best interests of the children. We find that the trial court erred in finding persistence of conditions. However, we affirm the trial court’s finding of abandonment and that termination is in the best interests of the children.

The Defendant, Joseph Benjamin Comer, IV, was convicted in the Loudon County Criminal Court on his guilty plea of reckless endangerment, a Class A misdemeanor, for which he received an eleven-month, twenty-nine-day sentence on probation. At issue in this appeal is the amount of restitution for damages caused by his crime. We affirm the judgment in part and remand the case to the trial court for entry of a corrected judgment reflecting that restitution is to be paid in monthly installments of $200.

The Defendant, Terry Byington, appeals his convictions by a jury in the Sullivan County Criminal Court for driving under the influence (DUI), fourth offense, a Class E felony; driving under the influence, a Class A misdemeanor; and driving on a revoked license, a Class B misdemeanor. The trial court merged the DUI convictions and sentenced the Defendant to four years for DUI and to six months for driving on a revoked license, to be served concurrently, for an effective four-year sentence in the Department of Correction. In this delayed appeal, the Defendant contends that the trial judge committed reversible error by refusing to recuse herself because she had formerly prosecuted the Defendant. We affirm the judgments of the trial court.

Elizabeth R. Doyle, who is not a party to this litigation, subdivided a parcel of property she owned in Jefferson County. Doyle sold “Tract #3” to the plaintiff, Norma Luttrell. Luttrell’s deed to Tract #3 also granted an “easement upon adjoining Tract #2 . . . for the existing septic system field lines servicing Tract #3.” The defendant, Hidden Valley Resorts, Inc., aka Mountain Properties, eventually acquired Tract #2, but not directly from Doyle. The defendant began to use its property in a way that interfered with the plaintiff’s easement, and the plaintiff filed her petition demanding that the defendant be enjoined from interfering with her easement rights. The case was tried without a jury, after which the trial court entered a judgment in favor of the defendant. The trial court found that the defendant had no actual notice of the easement prior to purchasing it, and further that the defendant had no constructive notice because a “standard title search of the chain of title for Defendant’s Tract #2 would not reveal Plaintiff’s easement.” The plaintiff moved for a new trial on two grounds: (1) that easements which run with the land do not depend on notice, and (2) that the trial court went beyond the scope of the pleadings in holding that the easement was unenforceable. The trial court denied the motion. The plaintiff appeals. We reverse the judgment and remand for
entry of a judgment in favor of the plaintiff.

A fired employee filed for unemployment benefits. The former employer opposed the benefits, maintaining that the employee was fired for misconduct. The Department of Labor and Workforce Development initially found for the employer and the employee appealed. After a hearing, the Appeals Tribunal found for the employee. The employer appealed. The Board of Review affirmed the Appeals Tribunal’s decision. The employer appealed to the chancery court, which vacated the administrative decision due to evidentiary issues and remanded the matter. On remand, the Board of Review considered the evidence in question and reaffirmed its earlier decision. The employer appealed to the chancery court, which affirmed the Board of Review. The employer appealed again. We affirm the chancery court’s decision.

The Defendant, William J. Wilson, pled guilty to two counts of attempted aggravated sexual battery, a Class C felony, and the trial court sentenced him to two consecutive sentences of six years, one year to be served in prison and the remainder to be served on probation. After a warrant was filed, the trial court found that the Defendant had violated his probation by dating, befriending, residing or uniting with someone who had children under the age of eighteen, because the Defendant has filed for a marriage license with a woman who had “several” children under the age of eighteen. The trial court ordered the Defendant returned to probation for ten years and required that he not have any contact with his fiancé, including telephone contact. The Defendant appealed, contending: (1) that the condition of probation requiring he not date or befriend a person with minor children had not been articulated to him by the trial court, as required by statute, and, further, is unconstitutional; and (2) that the condition that he refrain from telephone contact with his fiancé is unconstitutional. For the reasons stated herein, we affirm the judgment of the trial court.