APPELLATE COURT OPINIONS

This appeal involves a motion to set aside an execution on a vehicle. The plaintiff received a
judgment against the defendants in the amount of $62,500, which he promptly recorded in the county register’s office. The defendants subsequently purchased a new car, and a sheriff levied execution on the car to partially satisfy the judgment. The defendants filed this motion seeking to have the execution set aside because it was defective for various reasons, and they claimed that a third party held a security interest in the vehicle and had priority over the execution lien. The trial court denied the motion to set aside the execution and ordered the sheriff’s department to sell the vehicle. The defendants appealed. We affirm.

In this wrongful death case, Eva Hendrix (“Daughter”), acting individually and as administratrix of the estate of her mother, the decedent Edith Beck (“Mother”), sued Life Center Centers of America, Inc. (“Nursing Home”) among others. Nursing Home filed a “Motion to Compel Arbitration” based upon an arbitration clause signed by Daughter when Mother was admitted to Nursing Home’s facility approximately four months before her death. Daughter responds that she was not actually authorized to act as Mother’s attorney-in-fact at that time because Mother was still able to make her own medical decisions and therefore the power of attorney never became effective. The trial court agreed. Nursing Home appeals, arguing that Daughter’s power of attorney was effective when she signed the arbitration clause, and that, in any event, an actual or apparent agency relationship existed between Mother and Daughter, and Mother and Daughter “treated the [power of attorney] document as though it was effective.” We find that the evidence does not preponderate against the trial court’s conclusion that the power of attorney was not in effect when Daughter signed the various documents handed to her by Nursing Home. We further hold that Nursing Home’s alternative theories must fail as a matter of law. We therefore affirm.

The petitioner, James Davis, was convicted by a Tipton County jury of felony murder and aggravated robbery and received consecutive sentences of life without parole and twenty years. This court affirmed the petitioner’s convictions on direct appeal. State v. James Robert Davis, No. W2003- 02362-CCA-R3-CD, 2005 WL 452569, at *1 (Tenn. Crim. App. Feb. 24, 2005), perm. to appeal denied (Tenn. Aug. 22, 2005). In 2006, the petitioner filed a petition for post-conviction relief, alleging that he received ineffective assistance of counsel at trial. Following an evidentiary hearing, the post-conviction court dismissed the petition. After reviewing the record and finding no error, we affirm that order.

The pro se petitioner, Michael L. McKillip, appeals as of right the Bledsoe County Circuit Court’s summary dismissal of his petition for a writ of habeas corpus. The petitioner was convicted of aggravated sexual battery pursuant to his guilty plea in the Shelby County Criminal Court and received a sentence of fifteen years as a Range II offender to be served at one hundred percent. He alleges that he is entitled to habeas corpus relief because the trial court erroneously allowed him to plead outside his range and because the 1989 Criminal Sentencing Reform Act violates the United States Supreme Court’s holding in Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004). The trial court summarily dismissed the petition for failure to state a cognizable claim. Following our review, we affirm the judgment of the trial court.

This is an insurance case. The plaintiff bank made a home loan to the homeowner and took a deed of trust as security. Under the loan agreement, the homeowner was required to obtain a fire insurance policy on the premises. The defendant insurance company issued a fire insurance policy covering the house. The policy contained a standard mortgage clause requiring the insurance company to protect the bank’s interest and, in turn, requiring the bank to notify the insurance company of any increases in hazard. The homeowner fell behind on her monthly mortgage payments, so the bank initiated foreclosure proceedings. The bank sent a letter to the homeowner stating that it had begun foreclosure proceedings; it did not notify the insurance company of these proceedings. Before the foreclosure process was complete, the homeowner and her husband filed for bankruptcy, which stayed the foreclosure proceedings. Soon after that, the house was destroyed by a fire. The bank notified the insurance company of the loss. The insurance company refused to pay, asserting that the foreclosure proceedings constituted an increase in hazard of which the bank was required to notify the insurance company, and that the bank’s failure to provide such notice constituted a breach of the mortgage clause in the fire insurance policy. The bank then sued the insurance company for breach of contract, bad faith refusal to pay an insurance claim, and violation of the Tennessee Consumer Protection Act. The bank later filed a motion for partial summary judgment, asserting that T.C.A. § 56-7-804 indicated that the bank was not required to provide notice to the insurance company of foreclosure proceedings. The insurance company filed a cross-motion for summary judgment, arguing that such notice was required under the policy or, in the alternative, under the statute. The trial court denied the insurance company’s summary judgment motion but granted summary judgment to the bank. The insurance company appeals. We reverse, finding that the commencement of foreclosure proceedings constituted an “increase in hazard” under the standard mortgage clause in the insurance policy and an “increase of hazard” under T.C.A. § 56-7-804.

The Appellant, Scott Eric McDonald, presents for review a certified question of law pursuant to Tenn. R. Crim. P. 37(b)(2)(A). McDonald pled guilty to driving under the influence (DUI), second offense, and, as a condition of his guilty plea, reserved a certified question of law challenging the denial of his motion to suppress evidence, arguing that there was no reasonable suspicion to support the initial stop of his vehicle. On appeal, the State asserts that McDonald failed to properly reserve his certified question, and, as a result, this court is without jurisdiction to hear the appeal. Following review, we agree that the certified question of law was not properly reserved. Accordingly, the appeal is dismissed.

The defendant, Timothy Frazier, pled guilty to one count of theft of property more than $1,000 but less than $10,000, a Class D felony. The trial court denied the defendant’s request for judicial diversion and ordered him to serve a two-year, suspended sentence on supervised probation. On appeal, the defendant argues that the trial court’s denial of judicial diversion should be reversed. Upon review of the record and the parties’ briefs, we reverse the judgment of the trial court and remand this case for reconsideration.

This is a negligence case that resulted in a directed verdict for the defendant. The plaintiff’s minor son was killed when the truck he was riding in collided with a logging truck pulling the defendant’s load of logs. All parties involved in the accident died, and there were no eyewitnesses. The plaintiffs filed suit against the defendant on behalf of their deceased son. At trial, the defendant moved for a directed verdict, which the court granted. The plaintiffs now appeal, alleging that the trial court applied the wrong standard when it granted the directed verdict. Next, the plaintiffs argue that the court should have applied the theory of joint and several liability because the case involved concurrent negligence resulting in an indivisible harm. Finally, the plaintiffs argue that the court erred by excluding evidence relating to the defendant’s liability insurance. We affirm.

The defendant, Joe Allen Brown, pleaded guilty to two counts of possession of under .5 grams of cocaine with the intent to sell and/or deliver and was sentenced in the Madison County Circuit Court to an effective four year term to be served in a community corrections program. On March 16, 2007 the court revoked the community corrections sentence and resentenced the defendant to serve six years in the  Department of Correction.  From that order, the defendant appeals. Upon review, we affirm the judgment below.

Appellant, Hezekiah Cooper, was convicted of four counts of attempt to commit second degree murder, four counts of aggravated robbery, one count of aggravated burglary, and one count of possession of a firearm. As a result, the trial court sentenced Appellant to an effective sixty-year sentence. After the denial of a motion for new trial, Appellant presents the following issues for our review: (1) whether the evidence is sufficient to support the convictions; (2) whether the trial court erred “in refusing to allow Appellant to argue alternative theories” at trial; (3) whether the trial court erred in refusing to admit exculpatory evidence; (4) whether the trial court improperly instructed the jury on lesser included offenses; (5) whether Appellant’s sentences were excessive; and (6) whether the trial court erred by ordering Appellant to serve his sentences consecutively. After reviewing the issues, we determine that: (1) Appellant waived the issue regarding lesser included offenses for failing to request instructions at trial; (2) the trial court did not abuse its discretion in failing to admit exculpatory evidence; (3) Appellant waived several evidentiary issues by raising them for the first time on appeal; and (4) the trial court properly sentenced Appellant. However, we determine that the evidence was only sufficient to support two convictions for attempted second degree murder with respect to the actions against Ms. Thompson and her daughter Tanisha. Therefore, we reverse and dismiss the two remaining convictions for attempted second degree murder. Further, we determine that the evidence supports only one conviction for aggravated robbery because there was only one theft from the victims’ residence of property that was owned by Mr. Norfleet. However, we modify the conviction for aggravated robbery with respect to Jeraldrika Thompson to a conviction for aggravated assault and remand to the trial court for sentencing on that count. However, we are unable to modify the two remaining convictions for aggravated robbery with respect to the   actions taken against Ms. Thompson and Tanisha Thompson to aggravated assault because double jeopardy principles prohibit dual convictions for attempted second degree murder and aggravated assault. Accordingly, the convictions for aggravated robbery with respect to Ms. Thompson and Tanisha Thompson are reversed and dismissed. In all other respects, we affirm the judgment of the trial court.

I must respectfully dissent from the majority’s interpretation of the 1995 final decree of divorce to award only $338.30 per month out of the monthly retirement benefit to Ms. Ziobrowski.

This appeal involves a final decree of divorce that was entered in 1995, and a proposed qualified domestic relations order (“QDRO”) entered pursuant to that decree in 2006. The former husband claims that the proposed QDRO allows his former wife to receive a greater share of his monthly retirement benefit than the trial court awarded to the wife when it divided the parties’ marital property. We reverse and remand for further proceedings.

Plaintiff/Appellant, a student of McNairy County School District, filed a complaint for negligence against the Defendant/Appellee School District for injuries arising from an accident that occurred while the student was engaged in a work-based learning program. Finding that the actions of the School District did not cause the accident, the trial court granted summary judgment in favor of the School District. The student appeals. We affirm and remand.

We granted the application for permission to appeal in this divorce case to address two issues presented by Husband: (1) whether the increase, if any, in value of his separately-owned stock interest in the family-owned company for which he worked qualifies a marital property; and if so, (2) whether the chancellor correctly assessed the increase in value. Because we find that Husband’s employment with the company  in which he owned stock did not substantially contribute to the preservation and appreciation of the stock, we reverse the judgment of the Court of Appeals and remand this matter to the trial court for further proceedings consistent with this opinion.

This appeal involves a motorcycle rider and his passenger who were injured in an accident when they hit a large pothole on a state route highway. The rider and the passenger each filed claims with the Tennessee Claims Commission asserting that the State of Tennessee had failed to maintain the highway in a safe and proper condition. A Claims Commissioner determined that the pothole did constitute a dangerous condition on a state maintained highway pursuant to Tennessee Code Annotated section 9-8-307(a)(1)(J), but she determined that the State was not liable under that subsection because there was no proof that it had notice of existence of the pothole. The Commissioner then found that the State was negligent in maintaining the highway under Tennessee Code Annotated section 9-8-307(a)(1)(I), and therefore it was liable for the plaintiffs’ injuries. The State appeals. We reverse.

The Appellant, Verico Dewayne Jackson, appeals the Shelby County Criminal Court’s denial of his petition for post-conviction relief. Jackson, who was convicted of first degree murder, is currently serving a sentence of life imprisonment with the possibility of parole. On appeal, he argues that he was denied his Sixth Amendment right to the effective assistance of counsel, specifically arguing that trial counsel was ineffective in: (1) failing to adequately communicate with Jackson and the investigator assigned to the case, resulting in a lack of preparation for trial; (2) failing to seek a severance in the case; and (3) failing to request and argue for certain lesser-included offense instructions. After review, the judgment of the post-conviction court is affirmed.

This is an appeal of a habeas corpus petition filed by a prisoner. The appellant prisoner filed a petition for writ of a habeas corpus in the chancery court. The chancery court denied the prisoner’s habeas petition. The prisoner appealed. We vacate the judgment and dismiss the petition, finding that the chancery court did not have jurisdiction.

This is appeal involves a habeas corpus petition filed by a prisoner. The appellant prisoner filed a petition for a writ of habeas corpus in chancery court. The chancery court denied the prisoner’s habeas petition. The prisoner appealed. We vacate the judgment and dismiss the petition, finding that the chancery court did not have jurisdiction.

The Shelby County Sheriff’s Department terminated the employment of deputy Derek Davis based on a random drug screening. The Civil Service Merit Board affirmed the Department’s decision. Mr. Davis appealed to the Chancery Court for Shelby County, which affirmed. Mr. Davis filed a timely notice of appeal to this Court, asserting the Board’s decision is not supported by substantial material evidence. We reverse.

This appeal involves the lower court’s dismissal of a case with prejudice for failure to prosecute. The Department of Children’s Services fired the petitioner, and she requested an administrative hearing. The Administrative Law Judge upheld the termination, and the petitioner appealed to the chancery court in Shelby County. Pursuant to statute, the case was transferred to Davidson County. After one year, the chancellor entered an order that the petitioner schedule the case for a final hearing. The parties set a hearing date, but in violation of local rules the petitioner failed to submit a trial brief. The petitioner’s counsel twice requested a continuance, which was denied each time. The petitioner’s counsel withdrew, and the petitioner decided to proceed pro se. The petitioner was not on time for the hearing at 9:00 a.m. on October 5, 2006. She called the court, notifying all parties that she would be twenty minutes late. The judge waited until 9:40 and called the case, but the petitioner was not present. The judge then sua sponte dismissed the case with prejudice for failure to prosecute. The petitioner submitted a hand-written letter to the court with an explanation for her tardiness. The court treated the letter as a motion to alter or amend, and denied the motion. The petitioner appeals. We reverse and remand.

This appeal involves a dispute regarding the liability for the structural defects in a four-year-old house in a Mt. Juliet subdivision. Shortly after purchasing the house from its original owners, the property owners discovered that the house had been constructed on improperly compacted fill and other debris. When additional structural problems manifested themselves, the property owners filed suit in the Chancery Court for Wilson County seeking compensatory and punitive damages against the contractor who built the house and his wife, the original owners, the original owners’ real estate agent and broker, their own real estate agent and broker, and their home inspector. Following an eight-day trial, the jury determined that the contractor and the original owners had engaged in intentional and reckless misrepresentation by concealing the house’s structural problems. The jury also determined that both real estate agents and the developer of the subdivision were at fault. The jury awarded the property owners $58,720.80 in compensatory damages to be apportioned among the parties at fault. The jury also awarded the property owners $20,000 in punitive damages against one of the original owners and $50,000 in punitive damages against the contractor. The trial court reduced the punitive damage award against the original property owner to $14,000, and granted a judgment notwithstanding the verdict for the two real estate agents with regard to the property owners’ Tennessee Consumer Protection Act claims. On this appeal, the property owners take issue with the dismissal of their claims against the real estate agents and their brokers based on their use of an outdated and incomplete real property disclosure form. The contractor also takes issue with the judgments awarded against him for compensatory and punitive damages. We have determined that the trial court did not err by dismissing the property owners’ claims against the real estate agents and their brokers based on the use of the incomplete and outdated disclosure form. We have also concluded that the property owners presented insufficient evidence to establish their common-law fraud claim against the contractor who built the house. Accordingly, we reverse the portion of the judgment requiring the contractor to pay compensatory and punitive damages.

This is a Tenn. R. App. P. 9 interlocutory appeal from the Order of the trial court striking medical bills attached to Plaintiffs/Appellants’ complaint pursuant to T.C.A. § 24-5-113. The trial court specifically held that, because Plaintiffs/Appellants incurred total medical expenses in excess
of the statutory maximum of $4,000.00, the Plaintiffs/Appellants were not entitled to the statutory
presumption of reasonableness and necessity. Finding no errors of law, we affirm and remand.

This workers’ compensation appeal has been referred to the Special Workers’ Compensation
Appeals Panel in accordance with Tennessee Code Annotated § 50-6-225(e)(3). The trial court held that (1) Employee's job caused her injuries, (2) Employee’s delayed notice did not prejudice Employer, (3) Employee sustained a 60% permanent partial disability to the body as a whole, and (4) Employer should pay Employee’s discretionary costs pursuant to Rule 54.02 of the Tennessee Rules of Civil Procedure. Employee appeals the award of permanent partial disability benefits, contending she is permanently and totally disabled. Employer contends that the evidence preponderates against the trial court’s findings concerning causation and notice, and that sovereign immunity bars the award of discretionary costs. We reverse the trial court’s ruling on the assignment of discretionary costs and affirm all of the trial court’s other rulings.

Appellant, Reginald Anthony Laye, pled guilty to evading arrest and criminal impersonation prior to a jury trial, during which he was convicted of possession of .5 grams or more of cocaine with the intent to sell and possession of .5 grams or more of cocaine with the intent to deliver. The trial court merged the two convictions for possession into one conviction for possession of a Schedule II drug for resale. As a result of the convictions, Appellant was sentenced to an effective sentence of ten years and six months. After the denial of a motion for new trial and the filing of a timely notice of appeal, Appellant argues in this Court that the evidence was insufficient to support the conviction for possession of cocaine with the intent to sell or deliver. After a review of the record, we determine that the evidence was sufficient to support the conviction for possession of cocaine with the intent to sell or deliver and, therefore, affirm the judgment of the trial court.