APPELLATE COURT OPINIONS

The Defendant, Bethany Lorraine Kuykendall, pleaded guilty to theft of property valued at more than $1000 but less than $10,000, for which she was granted judicial diversion with the requirements that she complete two years of probation and pay $150 per month toward restitution. On appeal, she contends that the trial court abused its discretion in setting the restitution amount. Because we lack jurisdiction to consider her appeal, we dismiss it.

In January of 2011, Ezra Williams (“Plaintiff”) sued Stephen Leon Williams and Regions Bank . Plaintiff died in May of 2011. Regions Bank filed a Suggestion of Death. No motion for substitution of proper party was made within ninety days after Plaintiff’s death was suggested upon the record. In July of 2011, the attorney who had represented Plaintiff prior to Plaintiff’s death filed a Motion for Voluntary Dismissal. In October of 2011, Regions Bank filed a Motion for Summary Judgment. The Trial Court granted the Motion for Voluntary Dismissal without prejudice. Regions Bank appeals to this Court. We hold that the Trial Court should have dismissed the case pursuant to Tenn. R. Civ. P. 25.01 for failure to timely move for substitution of proper party. We, therefore, vacate the Trial Court’s judgment and dismiss this case pursuant to Tenn. R. Civ. P. 25.01.

Petitioner, Bobby Lee Scales, Jr., filed a pro se etition for habeas corpus relief attacking two convictions of theft in Davidson County and one conviction of theft in Williamson County. The habeas corpus trial court dismissed the petition without an evidentiary hearing, and Petitioner appeals. After a thorough review of the record and the briefs, we affirm the judgment of the habeas corpus trial court.

Jay Garrity ("the Defendant") was convicted of three counts of aggravated sexual battery, a Class B felony. After a hearing, the trial court sentenced the Defendant as a multiple offender to sixteen years on each count and ordered the sentences to be served consecutively for a total effective sentence of forty-eight years. The Defendant now appeals, arguing that the trial court erred "in allowing the State to call a ‘surprise’ witness." He also claims that the evidence is insufficient to support his convictions. Finally, the Defendant challenges the length and consecutive service of his sentences. After a thorough review of the record and the applicable law, we affirm the Defendant’s convictions. We, however, are compelled to vacate the Defendant’s sentence and remand for a new sentencing hearing.

The defendant in this action filed a motion for recusal with the trial judge alleging bias against both himself and his counsel. The trial judge denied the motion, and the defendant filed this interlocutory appeal as of right pursuant to Tenn. S. Ct. R. 10B. We affirm the trial court’s denial of the motion for recusal.
 

A Davidson County jury convicted the Defendant, James L. Dowell, III, of first degree felony murder, and the trial court sentenced him to a life sentence in the Tennessee Department of Correction. On appeal, the Defendant contends that: (1) the trial court erred when it ruled that if the Defendant presented the testimony of his accomplice the State could cross-examine the accomplice about past criminal activities in which both the Defendant and the accomplice willingly participated; and (2) the evidence is insufficient to sustain his conviction. After a thorough review of the record and relevant authorities, we affirm the trial court’s judgment.

Husband and Wife executed wills in which each relinquished the right of survivorship in the
marital residence and ordered that the property be sold and that $152,000 of the sale proceeds
be distributed to Wife’s children. Following the death of Wife, her children brought action
to compel Husband to dispose of the property in accordance with Wife’s will. Husband
appeals the holding that the wills he and Wife executed created a valid, enforceable contract
that required him to sell their residence upon her death. We affirm the judgment of the trial
court.

The Petitioner, Tracy L. Cope, appeals from the Sullivan County Criminal Court’s summary dismissal of his petition for post-conviction relief. The Petitioner contends that the postconviction court erred by concluding that all of his claims were previously determined. Following our review, we affirm the judgment of the post-conviction court.

County appeals the trial court’s decision finding the County liable for injuries sustained by
a student with Asperger’s syndrome in an altercation with another student. Finding that the
evidence does not preponderate against the trial court’s determination, we affirm.

The petitioner, Cedric Davis, appeals the summary denial of his petition for writ of error coram nobis. Following our review, we affirm the judgment of the trial court pursuant to Rule 20, Rules of the Court of Criminal Appeals.

Petitioners appeal from the dismissal of their complaint for declaratory relief, injunctive
relief, and damages wherein they challenged the constitutionality of a now superseded
section of the Tennessee Bail Reform Act, Tennessee Code Annotated § 40-11-118(a).
Petitioners contended that the 2011 statute prohibited night court judges or magistrates from
setting bail for persons charged with a second or higher driving under the influence violation,
thus requiring they be confined until a general sessions court judge or criminal court judge
was available. The trial court dismissed the claims for declaratory and injunctive relief on the
grounds of res judicata and collateral estoppel and dismissed the claim for monetary damages
against Governor Bill Haslam upon the ground of sovereign immunity. We find the challenge
to the constitutionality of the 2011 version of subsection (a) moot as the challenged
provisions of subsection (a) have been deleted and superseded. We also affirm the dismissal
of the claims against Governor Haslam for monetary damages as he has sovereign immunity.

Petitioner, Miqwon Deon Leach, appeals the summary dismissal of his petition for a writ of habeas corpus. He challenges his 2001 conviction for felony murder, for which a jury sentenced him to life imprisonment without the possibility of parole. He also challenges his conviction for conspiracy to commit second degree murder that arose from the same case. As grounds for habeas corpus relief, petitioner argues that: (1) conspiracy to commit second degree murder is not a cognizable offense under Tennessee law, rendering his conviction void; and (2) the evidence at trial did not establish his intent to commit felony murder. The habeas corpus court summarily dismissed the petition, and we affirm the judgment of the court.

This appeal arises from a divorce. Bonnie Faith Rodgers (“Wife”) sued her husband, Thomas Edward Rodgers (“Husband”), for divorce in the Circuit Court for Hamilton County (“the Trial Court”), alleging inappropriate marital conduct and irreconcilable differences. Wife and Husband had been married for more than 40 years. Husband answered and counterclaimed for divorce, also alleging inappropriate marital conduct. After a trial, the Trial Court divided the marital estate and awarded Wife periodic alimony. Husband appeals, arguing that the Trial Court erred in a host of ways, including its classification and division of the marital estate and its award of periodic alimony to Wife. Husband also appeals the Trial Court’s extending Wife’s Order of Protection against him for an additional five years. Wife raises her own issue regarding the allocation of certain vehicles. We affirm the judgment of the Trial Court in its entirety.

This is a medical malpractice case. The plaintiff patient presented at the hospital emergency room with chest pains; a stent replacement was performed. Three months later, the plaintiff’s treating physician told the plaintiff that she had suffered a heart attack during the stent replacement. The plaintiff obtained all her medical records and filed a lawsuit against the surgeon who performed the stent replacement. This lawsuit was later dismissed without prejudice. After the plaintiff substituted counsel and the plaintiff’s substituted attorney reviewed the medical records, the plaintiff filed a new lawsuit against the emergency room physicians, asserting that they were negligent prior to the stent replacement. The emergency room physicians filed a motion for summary judgment, based in part on the three-year statute of repose. The trial court granted summary judgment in favor of the defendant emergency room physicians, finding that the statute of repose had run on the plaintiff’s claim. The plaintiff patient appeals, arguing that there is an issue of disputed fact as to whether the defendant physicians engaged in fraudulent concealment, so as to toll the time limit under the statute of repose. We affirm.

Petitioner, Freddie L. Osborne, appeals from the trial court’s summary dismissal of the pro se petition for habeas corpus relief filed by Petitioner. After a thorough review of the record and the briefs, we affirm the judgment of the habeas corpus trial court.

Appellant, Timothy W. Ford, was convicted by a DeKalb County jury of the initiation of a process to manufacture methamphetamine, a Class B felony. The trial court imposed a sentence of eleven years and six months. Appellant challenges his conviction and sentence for the following reasons: (1) the evidence was insufficient to sustain the conviction; (2) the trial court erred in denying his motion in limine to exclude evidence of his prior conviction; and (3) the sentence was excessive because the trial court failed to give ample weight to the mitigation evidence. Discerning no error, we affirm the judgments of the trial court.

Following a trial, a Davidson County jury found appellant, Steven Woodrow Johnson, guilty of felony murder, especially aggravated burglary, aggravated burglary, aggravated assault, and possession of a firearm during the commission of a dangerous felony. The trial court sentenced appellant to life in prison for felony murder. The trial court also sentenced appellant to serve sentences of ten years for especially aggravated burglary (count two) and five years for aggravated burglary (count four) and then merged the two convictions. Appellant was sentenced to five years for aggravated assault and three years for possession of a firearm during the commission of a dangerous felony. Some sentences were consecutive to each other, but all were concurrent to the life sentence for felony murder. Thus, appellant received an effective life sentence. On appeal, appellant contends that the evidence was insufficient to support his convictions. Following review of the record, we conclude that the conviction of especially aggravated burglary should be modified to aggravated burglary. Because only one judgment of conviction should have been entered as to the merged counts, we vacate the judgments in count two and count four and remand to the trial court for entry of a single judgment of conviction consistent with this opinion. We affirm the judgments of the trial court in all other respects.

This is a Governmental Tort Liability Case. The trial court determined that Appellant was at least 50% at fault for the injuries she sustained when she fell from an elevated stage at an event held at a building, which is owned and operated by Appellee City of Jackson. Discerning no error, we affirm.

Alleged creditor filed a claim against the decedent’s estate seeking $524,160 for personal
services she claims to have provided to the decedent during the last ten months of his life.
She claims the decedent agreed that she would reside in his home and provide the decedent with around the clock care. Upon motion for summary judgment filed by the administrator of the estate, the probate court denied the claim, finding there was no contract or quasi-contract between the alleged creditor and the decedent because the decedent was mentally incapable of entering into a contract, and that the family service rule barred the alleged creditor from recovering because the alleged creditor and the decedent were engaged to be married at the time of the decedent’s death. We affirm.

A Sullivan County jury convicted the Petitioner, Timothy Lynn Denton, of first degree premeditated murder, and the trial court sentenced him to life in the Tennessee Department of Correction. This Court affirmed his conviction on direct appeal. State v. Timothy Lynn Denton, No. E2006-02557-CCA-R3-CD, 2008 WL 933200 (Tenn. Crim. App., at Knoxville, Apr. 7, 2008), perm. app. denied (Tenn. Oct. 27, 2008). The Petitioner then filed a petition for post-conviction relief, contending that he had received the ineffective assistance of counsel. After a hearing, the post-conviction court dismissed the petition. On appeal, the Petitioner contends that the post-conviction court erred when it dismissed his petition because his trial counsel was ineffective by failing to convey to him plea offers and by failing to appeal the trial court’s ruling that he was competent to stand trial. After a thorough review of the record and applicable authorities, we affirm the post-conviction court’s judgment.

This appeal involves the forfeiture of property that had been either used or furnished in
violation of the Drug Control Act. The property at issue was subject to a lien held by
Citizens Bank. Following the forfeiture of the seized property, Citizens Bank notified the
State of its lien and requested the return of the property. The State directed Citizens Bank
to file an appeal with the chancery court. Instead, Citizens Bank sued Claimant for the
balance owed on the property and an order of judgment was entered against Claimant.
Claimant filed suit against the State in the Claims Commission, alleging that the State was
negligent because it failed to notify the proper lienholder of the forfeiture. The State filed
a motion for summary judgment, which was granted by the Claims Commission. Claimant
appeals. We affirm the decision of the Claims Commission.

Appellant, Scot E. Vandergriff, pled guilty to soliciting sexual exploitation of a minor by electronic means, a Class E felony, for which he received an agreed- upon sentence of two years. The trial court granted his request for probation but denied his application for judicial diversion. In this appeal, he claims that the trial court erred in denying his application for judicial diversion. Because the trial court failed to adequately state upon the record the basis for denying judicial diversion, we vacate the judgment and remand this matter for further proceedings consistent with this opinion.

I concur completely in the result reached by the majority. I write separately to express my disagreement with the following dicta in the majority opinion: While the wording of [Tennessee Supreme Court] Rule 13 [§1(d)(2)(B)] indicates that Grandmother may have had a statutory right to an attorney during the termination proceeding,

The Defendant, Albert Franklin Thompkins, appeals as of right from the trial court’s revocation of his enhanced probation and reinstatement of his eight-year sentence for rape. The Defendant contends that the trial court abused its discretion in revoking his probation because the State failed to prove that he had violated the terms of his probation in a substantial way in that he had not committed any new crimes nor was there any evidence that he had failed any drug screens. Following our review, we affirm the trial court’s revocation of the Defendant’s probation and order that the Defendant execute his original sentence in confinement.

A Davidson County Criminal Court Jury convicted the appellant, Larry Wayne Webb, of theft of property valued $1,000 or more but less than $10,000, a Class D felony, and the trial court sentenced him as a Range IV, career offender to twelve years. On appeal, the appellant contends, and the State concedes, that the evidence is insufficient to support the conviction. Based upon the oral arguments, the record, and the parties’ briefs, we agree that the evidence is insufficient. Therefore, the conviction is reversed, and the charge is dismissed.