APPELLATE COURT OPINIONS

Plaintiff appeals the dismissal of her personal injury action as barred by the savings statute, Tenn. Code Ann. § 28-1-105. The trial court measured the period for refiling the action from the date of entry of an Order of Non-Suit which had been sent to the court by facsimile rather than from the date of entry of the hard copy of the order. We find that the trial court correctly held that the operative date for purposes of the Tennessee savings statute was the date of entry of the first order received and signed by the court, but that Plaintiff was not given notice of entry of the order, as his counsel had requested. Consequently, we reverse the trial court’s dismissal of this action and remand for further proceedings.

This appeal involves the enforcement of a foreign judgment. In 1997, the defendant pled nolo contendere to a criminal charge in a Texas court. As a part of his sentence, the defendant was ordered to pay restitution. The judgment of conviction listed the party to whom restitution should be paid. In 2005, the plaintiff corporation filed a lawsuit in Tennessee, seeking to enforce the Texas judgment. In his response, the defendant noted that the plaintiff corporation was not the party named in the Texas judgment to receive restitution from the defendant. The plaintiff filed a motion for summary judgment, asserting that the entity listed in the Texas judgment to receive restitution was the plaintiff’s “doing business as” name, and that the plaintiff was in fact the proper party to enforce the Texas judgment. A hearing on the defendant’s motion for summary judgment was held before expiration of the required thirty-day period after service of a motion for summary judgment. The trial court granted summary judgment in favor of the plaintiff corporation. The defendant now appeals. He argues that the trial court erred by holding the hearing on the plaintiff’s summary judgment motion before expiration of the T.R.C.P. 56.04 thirty-day period. He also argues that the trial court erred in permitting the plaintiff corporation to domesticate and enforce the foreign judgment. We affirm, finding that the defendant was not prejudiced by being deprived of the T.R.C.P. 56.04 thirty-day period between service of the motion for summary judgment and the hearing, and that summary judgment in favor of the plaintiff corporation was otherwise proper.

This is a Tenn. R. App. P. 9 appeal from the trial court’s denial of Appellant/Defendant’s motion to dismiss the Appellees/Plaintiffs’ complaint for legal malpractice. Appellant, a licensed attorney, represented the Appellees in a lawsuit following an automobile accident. Appellant failed to effect service of process on the party-defendant to that suit. Appellees retained other counsel and filed a legal malpractice lawsuit against Appellant. Appellees’ new counsel made a strategic decision to withhold service of process on Appellant pending the outcome of the underlying case. Appellant filed a motion to dismiss pursuant to Tenn. R. Civ. P. 4.01(3) for intentional delay of service of process. The trial court denied the motion to dismiss, and this appeal followed. We reverse and remand.

This appeal involves the termination of parental rights. The children were taken into protective custody soon after the birth of the youngest child, and were ultimately found to be dependent and neglected. The father was not appointed an attorney at this stage of the proceedings. Both the mother and father underwent psychological evaluations; both were found to be in the mild range of mental retardation and lacking the mental capacity to care for their children. DCS sought termination of their parental rights, alleging several grounds, including abandonment and mental incapacity. After a hearing, the lower court terminated the parental rights of both parents. The father appeals, arguing that DCS did not prove abandonment and mental incompetence by clear and convincing evidence. He also argues that the failure to appoint an attorney for him during the dependency and neglect proceedings was a denial of his right to due process. We affirm the trial court’s finding on the ground of mental incompetence. We also find that any violation of Father’s due process rights in relation to the dependency and neglect proceedings was remedied by procedural protections in place in the termination proceedings. Therefore, we affirm the termination of the father’s parental rights.

This appeal involves a question of law concerning the interpretation of Tenn. Code Ann. § 56-7-2303 (2008) certified by the United States Bankruptcy Court for the Middle District of Tennessee. The bankruptcy court has asked this Court to determine whether the issuer of a deceased debtor’s life insurance policy was exempted under Tenn. Code Ann. § 56-7-2303(d) from the statutory notice requirements for lapsed life insurance policies because the premium payments on the policy were being paid monthly. We hold that the plain language of Tenn. Code Ann. § 56-7-2303(d) exempts from the notice requirements in Tenn. Code Ann. § 56-7-2303(a) “any policies upon which premiums are payable monthly or at more frequent intervals.” Based on the undisputed facts, the premiums for the debtor’s life insurance policy were “payable monthly.” Therefore, the issuer of the policy was not required to give either the debtor or the trustee the notice required by Tenn. Code Ann. § 56-7-2303(a), and the policy lapsed in accordance with its terms before the debtor’s death.

I write separately to set out unique factors used in my analysis concluding insufficient evidence  exists upon this record to support the defendant’s conviction of reckless endangerment. A notion widely held is that whenever people are arguing, participating in fisticuffs, or engaged in fights involving knives, bats, or chairs, the discharging of a firearm into the air has the immediate effect of alerting all participants that a higher and more powerful authority has been introduced into the situation and, therefore, the holder of the firearm is deserving of respect and attention. I feel this notion is misguided and outdated, and although I have found for this defendant, I do not wish to suggest that firing a weapon into the air is not reckless or is safe. Common sense tells us that what goes up must come down. I simply do not know where or with what force the bullet returns.

The Defendant, Nino Jones, was convicted by 1 a jury of one count of sale of cocaine, a Class C felony. In this direct appeal, he argues that the State failed to rebut his defense of entrapment beyond a reasonable doubt. We conclude that this argument lacks merit, and accordingly affirm.

I respectfully dissent from the majority opinion in this matter. As I will explain, I believe that the cases relied upon by the majority are distinguishable upon the facts from those presented by the present appeal.

A Hardeman County jury convicted the defendant, Anthony Phillip Geanes, of reckless endangerment with a deadly weapon, a Class E felony. The trial court sentenced the defendant as a multiple offender to three years imprisonment, consecutive to another sentence.1 In this appeal, the defendant raises the issue of whether the evidence was sufficient to support his conviction for reckless endangerment with a deadly weapon. Upon review of the evidence, we are constrained  to hold that the evidence was insufficient to prove the defendant guilty of reckless endangerment  with a deadly weapon. Therefore, we reverse the judgment of the trial court, vacate the conviction  and dismiss the charge.

This appeal arises from a medical malpractice claim. The defendant physician performed an operation on the plaintiff patient. Complications occurred during the surgery; as a result, the patient required several more procedures and spent approximately three weeks in the hospital. The patient hired an attorney, who obtained an opinion letter from a physician expert, in which the expert opined that the defendant physician breached the standard of care during the patient’s initial operation. After securing the expert opinion, the patient filed this lawsuit against the defendant physician for medical malpractice. After the case had been pending for several years, the attorney for the defendant physician took the deposition of the patient’s expert. At the deposition, the patient’s expert changed his opinion, and testified that he believed that the defendant physician’s care of the patient was not below the standard of care. The next day, the defendant physician filed a motion for summary judgment. Several months later, the patient filed a motion under Tenn. R. Civ. P. 56.07 requesting a continuance of the summary judgment motion because he had been unable to engage another expert. The trial court denied the plaintiff’s motion for a continuance and granted summary judgment in favor of the defendant physician. The patient appeals. On appeal, the plaintiff argues that the trial court erred in denying his request to continue the motion for summary judgment. We affirm, finding no abuse of discretion in the trial court’s denial of the request for a continuance, and thus in the grant of summary judgment in the defendant’s favor.

The defendant, Quamine Jones, was convicted of first degree premeditated murder and sentenced to life imprisonment. He argues that the evidence of premeditation was insufficient to support his conviction for first degree murder, the indictment should have been dismissed because he was denied a preliminary hearing, the trial court erred in admitting into evidence a photograph of the victim and testimony of a witness regarding his reluctance to testify, and the State withheld exculpatory evidence. Following our review, we affirm the judgment of the trial court.

This is a medical malpractice case. The trial court granted summary judgment in favor of Appellee doctor on grounds of insufficient service of process, and failure of Appellant patient to come forward with the required expert proof to refute the motion for summary judgment. Finding no error, we affirm.

This is a Title IV-D child support case. Appellee father executed a voluntary acknowledgment of paternity and a consent paternity order. After discovering that he was not the child’s biological father, Appellee sought relief from both his retroactive and future child support obligations. The trial court granted Appellee’s motion on the ground that he was not the biological father. The State of Tennessee seeks review of the trial court’s decision. We conclude that the trial court did not have authority to forgive Appellee’s child support arrears. Moreover, Appellee has neither alleged sufficiently specific facts to challenge the voluntary acknowledgment of paternity as required under Tenn. Code. Ann. § 24-7-113, nor has he satisfied the necessary requirements of Tenn. R. Civ. P.60.02 to gain relief from either the consent paternity order, or the order on child support entered in the chancery court. We reverse and remand.

This workers’ compensation appeal has been referred to the Special Workers’ Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated § 50-6-225(e)(3) for a hearing and a report of findings of fact and conclusions of law. In this case employer appeals the trial court’s findings that the employee’s injury arose out of employment, that the employee did not make a meaningful return to work, and that the employee met at least three of the four criteria set forth in Tennessee Code Annotated section 50-6-242(b) by clear and convincing evidence and thus was not subject to the six times cap. We affirm the trial court’s finding that the employee’s injury arose out of her employment. However, we reverse the finding of the trial court with regards to the employee’s meaningful return to work. Our conclusion that employee made a meaningful return to work therefore precludes consideration of the issue of whether the six times cap applies.

The petitioner, Ellis S. Baucom, Jr., pled guilty to aggravated burglary and aggravated robbery, receiving sentences, respectively, of fifteen years and thirty years, to be served concurrently at forty-five percent. Subsequently, he filed a petition for post-conviction relief, arguing that trial counsel had been ineffective in representing him. Following an evidentiary hearing, the post-conviction court dismissed the petition. We affirm that dismissal.

This is an appeal from a grant of summary judgment in a personal injury case. The plaintiff, a diabetic, consumed a substantial amount of alcohol and then proceeded to drive south towards an intersection. At about the same time, the defendant was traveling east toward the same intersection. The plaintiff’s vehicle skidded, hit the curb, and then collided with a telephone pole. After the onecar accident, the plaintiff followed the defendant and his family to a nearby parking lot and accused the defendant of running the stop sign at the intersection and causing the plaintiff’s accident. After that, the police arrived and gave the plaintiff a breathalyzer test, which he failed. The plaintiff was later convicted of reckless driving and driving under the influence of an intoxicant in connection with the accident. At his criminal trial, the plaintiff admitted drinking alcohol and that his tires were in poor condition. The plaintiff nevertheless filed a negligence claim against the defendant. The defendant filed a motion for summary judgment. The trial court granted summary judgment to the defendant, finding that, based on the plaintiff diabetic’s intoxication and faulty tires, he was, as a matter of law, at least fifty percent at fault for his own injuries. The plaintiff appeals, arguing that the trial court erred in granting the defendant’s motion for summary judgment. We affirm.

Willie R. Dyer was indicted for driving under the influence of an intoxicant and driving with a blood alcohol level of over .08 percent. During the jury trial, the trial court dismissed the indictment with prejudice on the basis that the chain of custody for the blood sample was inadequate. Subsequently, the State appealed. We determine that the trial court abused its discretion where the evidence was sufficient to establish chain of custody of the blood sample and, therefore, reverse and remand the judgment of the trial court for reinstatement of the indictment. Further, we determine that principles of double jeopardy do not bar retrial.

The Petitioner, Brian Christian Lautenschlager, appeals the trial court’s denial of his petition for post-conviction relief as being time-barred. The State has filed a motion requesting that this Court affirm the judgment of the trial court pursuant to Rule 20, Rules of the Court of Criminal Appeals. Upon review, we conclude that the petition for post-conviction relief was not filed within the one-year statute of limitations. Therefore, we affirm the trial court’s dismissal.

The Petitioner, Eric Carter, appeals the Shelby County Criminal Court’s denial of his motion to reopen his post-conviction proceeding. On appeal, the Petitioner contends that the court erred by denying his motion without holding an evidentiary hearing and claims he is entitled to relief based upon the ruling in State v. Gomez, 239 S.W.3d 733 (Tenn. 2007). Because the Petitioner failed to comply with the statutory requirements for appealing the denial of a motion to reopen, this Court is without jurisdiction to review the issue. Accordingly, we dismiss the appeal.

This appeal concerns the enforceability of an arbitration agreement between a nursing home and one of its patients. Although the trial court found that the patient’s spouse had authority to sign the agreement under the terms of a power of attorney, the court concluded that the spouse did not knowingly and voluntarily waive the patient’s right to a jury trial. Therefore, the trial court denied the defendant’s motion to compel arbitration. After reviewing the entire record, we find that thefacts do not support the trial court’s conclusion. Accordingly, we reverse and remand.

The Defendant, Annette Turner Morrow, appeals from the sentencing decision of the Maury County Circuit Court. The Defendant pleaded guilty to theft of property valued at over $10,000 but less than $60,000 and identity theft. Following a sentencing hearing, the trial court imposed an effective five-year sentence as a Range I, standard offender and ordered the Defendant to serve her sentence in the Department of Correction. On appeal, the Defendant contends that the trial court erred in denying her request for probation or other alternative sentencing. Finding no error, we affirm the judgment of the trial court.

Defendant-Appellant, Frank G. Watkins (hereinafter “Watkins”), appeals the Madison County Circuit Court’s order revoking his community corrections sentence. Watkins contends that the trial court abused its discretion by failing to base its decision on a “willful” action. Following our review, we find no abuse of discretion. The judgments of the trial court are affirmed.

In this declaratory judgment action, the Trial Court granted defendant summary judgment on the issue of priority of liens on real property. On the Petition to Set Up a Lost Instrument, the Trial Court following an evidentiary hearing, held that defendant was entitled to set up the lost instrument by a copy of its original. On appeal, we affirm the Trial Court’s decision in establishing the lost instrument, but vacate the summary judgment on the issue of the priority of liens and remand for trial on that issue.

An apartment complex owner filed a petition for writ of certiorari to challenge a decision of the Metro Board of Fire and Building Code Appeals denying the owner’s appeal of the fire marshal’s citation of the apartment complex for failure to install pull station alarms in certain areas. We agree with the chancellor’s conclusion that the Board did not exceed its jurisdiction, did not act illegally or arbitrarily, and based its decision upon material evidence.

I concur with the result reached by the Court. Based on the current appellate record, there exists a genuine factual issue regarding whether Conductor Danny Martin sounded the train’s whistle as the train approached the crossing as required by Tenn. Code Ann. § 65-12-108(2) (2004).