APPELLATE COURT OPINIONS

This is the second appeal in this breach of contract case. The plaintiff employee filed this lawsuit against the defendants for breach of an oral employment agreement. The trial court granted summary judgment in favor of the plaintiff and awarded him damages. The defendants filed a motion to revise the summary judgment order and submitted an affidavit in support of the motion. The trial court struck the supporting affidavit and denied the motion to revise. The defendants filed the first appeal. In the first appeal, the trial court’s grant of summary judgment, including the award of damages, was affirmed, but the cause was remanded to the trial court for findings on its denial of the motion to revise. On remand, the trial court explained that it struck the affidavit submitted with the motion to revise for lack of personal knowledge and because it violated the Dead Man’s Statute. The defendants now appeal the trial court’s order denying the motion to revise. We reverse the denial of the motion to revise and remand for a recalculation of damages.

The Defendant, Tommy L. Beaty, pled guilty to aggravated burglary and agreed to allow the trial court to set the length and manner of his sentence. The trial court sentenced him to thirteen years in the Tennessee Department of Correction. On appeal, the Defendant contends the trial court erred when it set the length of his sentence and when it ordered him to serve his sentence in confinement. After a thorough review of the record and applicable law, we affirm the trial court’s judgment.

The Defendant, Kasey N. Maddox, appeals the sentencing decision of the Bedford County Circuit Court. Following her guilty plea to the sale of .5 grams or more of cocaine, a Class B felony, the trial court imposed a nine-year sentence as a Range I, standard offender to be served in the Department of Correction. On appeal, the Defendant asserts that the trial court erred in denying alternative sentencing. After a review of the record, we affirm the judgment of the trial court.

The Petitioner, Jose E. Molina, aka Roberto C. Perez, was convicted by a jury of aggravated rape and aggravated robbery and was, thereafter, sentenced to an effective sentence of twenty-one years at 100%. This Court affirmed the Petitioner’s convictions on direct appeal. The Petitioner filed a timely petition for post-conviction relief and, following an evidentiary hearing, the post-conviction court denied relief. In this appeal, the Petitioner raises the following issues for review: (1) the post-conviction court erred in its determination that the Petitioner’s trial counsel was effective; and (2) in light of a recent publication, the fingerprint comparison testimony at his trial should be excluded as scientifically unreliable. Following our review, we conclude that the Petitioner has not shown he is entitled to relief. We affirm the Davidson County Criminal Court’s denial of relief.

The defendant, Antonio L. Saulsberry, was convicted by a Shelby County Criminal Court jury of murder during the perpetration of a robbery and murder during the perpetration of a burglary. His convictions were merged and he was sentenced to life imprisonment, to be served consecutively to prior convictions for especially aggravated robbery and conspiracy to commit aggravated robbery for which he had already been sentenced to an effective term of fifty years as a Range II offender. On appeal, the defendant challenges the sufficiency of the convicting evidence. After review, we affirm the judgments of the trial court.

The Defendant, Timothy Lebron Arnold, was indicted for especially aggravated robbery, a Class A felony, but pled guilty to robbery, a Class C felony, and received a sentence of five years in the Tennessee Department of Correction. In this appeal as of right, the Defendant contends that the trial court erred in permitting testimony from an officer at the sentencing hearing; that the trial court erred in setting the length of his sentence; and that the trial court erred in denying alternative sentencing. Following our review, we affirm the judgment of the trial court.

This is an appeal from the trial court’s order, finding Appellant in criminal contempt of court for willful failure to pay his ordered child support. Appellant appeals, alleging that the trial court erred in: (1) denying Appellant a full transcript of the hearing at the State’s expense; (2) giving little or no credence to the evidence offered by Appellant’s witness; and (3) finding Appellant in criminal contempt for willful failure to pay child support. Discerning no error, we affirm.

Appellant, Darius Williams, was indicted by the Shelby County Grand Jury for three counts of aggravated robbery, one count of aggravated burglary, and one count of employing a firearm during a felony. After a jury trial, Appellant was found guilty on all counts. As a result, Appellant was sentenced to an effective sentence of seventeen years. After the denial of a motion for new trial, Appellant initiated a direct appeal. On appeal, Appellant challenges the sufficiency of the evidence. After a review of the record, we conclude that the evidence was sufficient to support Appellant’s convictions. Accordingly, the judgments of the trial court are affirmed.

The defendant, Larry Ward, stands convicted of criminally negligent homicide, a Class E felony. The trial court sentenced him as a Range II, multiple offender to four years in the workhouse. On appeal, the defendant challenges the sufficiency of the evidence to sustain his conviction. Upon our close review of the evidence, we are constrained to conclude that the evidence was insufficient to prove beyond a reasonable doubt that a homicide was committed in this case. Therefore, we reverse the judgment of the trial court, vacate the conviction, and dismiss the charge against the defendant.

This lawsuit stems from a grievance process initiated by a detective with the Cleveland Police Department, Duff L. Brumley (“Brumley”). Brumley was instructed to undergo retraining as a result of a citizen complaint letter written in connection with his investigation of a possible burglary. Brumley was dissatisfied with the mandatory retraining and initiated the grievance process under the City of Cleveland’s official policy. The grievance reached an appeal hearing before the City Manager. The City Manager affirmed the order to Brumley to undergo retraining. Brumley filed an Application for Writ of Certiorari in the Trial Court. The Trial Court denied Brumley’s Writ of Certiorari. Brumley appeals, claiming that the Trial Court improperly excluded additional evidence Brumley wanted to introduce and found a material basis for the City Manager’s decision where none existed. We hold that the Trial Court did not err in its decision as to the additional evidence Brumley sought to admit. We further hold that the City Manager did not act arbitrarily or capriciously and had a material basis for her decision. We, therefore, affirm the judgment of the Trial Court.

NDP purchased property upon which Central Parking operated pay-parking lots pursuant to lease amendments with the prior owner. Central Parking calculated the rent it owed NDP pursuant to the amendments, but due to a computer glitch, paid double the rent it claimed was owed. NDP refused to refund the money, claiming the payment equaled the fair rental value of the property. Central Parking sued NDP for the alleged overpayment, and the trial court dismissed Central Parking’s claims. Because Central Parking’s only basis for relief on appeal–an implied notice theory–was first raised in a Rule 59.04 motion, and an issue first raised in a motion to alter or amend is not properly raised before the trial court, we find the issue is waived on appeal. The trial court’s dismissal of Central Parking’s claims is affirmed.

The plaintiff foreclosed on real property following the default on a loan secured by a deed of trust. The plaintiff then filed a detainer warrant in General Sessions Court and the defendant appeared claiming rightful possession to the property because of a quit claim deed. After hearing the evidence, the General Sessions Court awarded possession of the property to the plaintiff. The defendant appealed to the Knox County Circuit Court. A jury trial commenced, and at the close of proof, the plaintiff moved for a directed verdict. The trial court granted the directed verdict and awarded possession of the property to the plaintiff. The defendant appeals. We affirm.

Alleging Husband’s failure to pay child support and alimony as required, Wife filed petitions for contempt. The trial court found Husband guilty of seven counts of willful criminal contempt and entered a judgment against him for unmet obligations. On appeal, Husband claims the trial court erred in finding him in contempt, in imputing a $1,000 per month income to Wife, in upholding his work-related childcare obligation, in denying his counterpetition to modify spousal and child support, and in excluding certain witness testimony. He also argues that he was denied a hearing regarding Wife’s attorney fees. Because the trial court failed to make a finding regarding Husband’s ability to pay, we reverse Husband’s criminal contempt conviction. Additionally, we find the trial court erred in upholding the workrelated childcare award, and we remand for a determination of Husband’s retroactive credit for amounts paid subsequent to the filing of his petition to modify and for a recalculation of his future support obligations. However, we find that the trial court did not err in imputing Mother’s income, in refusing to allow Father’s witness to testify, nor in awarding Wife her attorney fees without a hearing.

I concur in the decision of the majority to affirm the trial court’s judgment in favor of American General Financial Services, Inc. I respectfully dissent from the majority’s conclusion that Mr. Goss’s appeal is not so devoid of merit as to warrant a holding that his appeal is frivolous in nature. When an appellant seeks to reverse or modify a trial court’s judgment based upon an alleged error grounded in the facts of the case, but fails to present us with a verbatim transcript or statement of the evidence, the appellant’s appeal has no chance of success. An appeal is deemed frivolous if it is devoid of merit or if it has no reasonable chance of success. Bursack v. Wilson, 982 S.W.2d 341, 345 (Tenn. Ct. App. 1998); Industrial Dev. Bd. v. Hancock, 901 S.W.2d 382, 385 (Tenn. Ct. App. 1995). See also Linn v. Howard, E2006-00024-COA-R3-CV, 2007 WL 208442 at *5 (Tenn. Ct. App. E.S., filed on January 26, 2007). When the only issues on an appeal are factual ones – as opposed to legal questions – we must have a record that permits us to reach those issues. In my judgment, this appeal is – by definition – a frivolous appeal. I would remand for a hearing to determine “just damages” due the appellee pursuant to Tenn. Code Ann. § 27-1-122 (2000).

In this interlocutory appeal, we are asked to determine: (1) whether the Tennessee savings statute, Tenn. Code Ann. § 28-1-105(a), may be invoked twice within the one-year savings period to save otherwise untimely actions; and (2) whether the Appellee acted with the diligence and good faith necessary to invoke the protection of the savings statute. We conclude that Appellee’s suit was properly brought within the protection of the Tennessee savings statute. Consequently, we affirm the judgment of the trial court.

In a dispute over the enforceability of an arbitration provision in a consulting contract, the trial court found the provision ambiguous and denied the appellant’s motion to dismiss or to compel arbitration. We find that the provision is not ambiguous. We remand for a ruling on the condition precedent to arbitration: whether the appellant made a good faith effort to come to a mutual agreement before unilaterally selecting an arbitration service, location, and choice of law forum. We have also concluded that should the parties reach arbitration, the issue of fraud in the inducement is arbitrable.

The Petitioner, Cyrus Deville Wilson, appeals as of right from the Davidson County Criminal Court’s dismissal of his petition for a writ of error coram nobis. The Petitioner contends that the coram nobis court erred by summarily dismissing his petition without an evidentiary hearing. Following our review, we reverse the judgment of the coram nobis court and remand the Petitioner’s case for an evidentiary hearing.

I dissent from the majority opinion because I conclude that the allegations contained in the Petitioner’s petition for a writ of error coram nobis are insufficient to demonstrate that he is entitled to relief. As such, I do not think that the coram nobis court erred when it summarily dismissed the petition without an evidentiary hearing.

The Petitioner, Warren Fowler, appeals as of right from the Knox County Criminal Court’s denial of his petition for post-conviction relief. The Petitioner pled guilty to attempted first degree murder and especially aggravated kidnapping, both Class A felonies, and received concurrent sentences of 20 years. The Petitioner challenges the performance of trial counsel and the voluntariness of his guilty plea. Following our review, we affirm the judgment of the post-conviction court.

A Davidson County Criminal Court jury convicted the appellant, Leonard Allen, of especially aggravated robbery, and the trial court sentenced him to twenty years in confinement to be served at one hundred percent. On appeal, the appellant contends that (1) a plea agreement he entered into with the State after the jury convicted him is invalid because he had already filed a notice of appeal to this court; (2) the trial court committed plain error by not ruling that a photograph array shown to the victim months after the robbery and introduced into evidence at trial was impermissibly suggestive; and (3) the evidence is insufficient to support the conviction. Based upon the record and the parties’ briefs, we affirm the appellant’s conviction for especially aggravated robbery.

The petitioner executed a voluntary acknowledgment of paternity shortly after the birth of a child. Several years later, after he was ordered to pay child support, he filed a petition seeking to rescind the voluntary acknowledgment of paternity, or alternatively seeking court-approved DNA testing, pursuant to Tennessee Code Annotated section 24-7-113. The juvenile court denied his petition upon finding that he failed to prove fraud in the procurement of the voluntary acknowledgment of paternity. Finding that the evidence preponderates against the trial court's finding concerning fraudulent procurement, we reverse and remand for further proceedings to include parentage tests.

This matter is before the Court upon the State’s motion to dismiss or in the alternative to affirm the judgment of the trial court by memorandum opinion pursuant to Rule 20, Rules of the Court of Criminal Appeals. Petitioner has appealed the trial court’s order dismissing his motion to reopen his petition for post-conviction relief. Upon a review of the record in this case, we are persuaded that the trial court was correct in dismissing the petition and that this case meets the criteria for affirmance pursuant to Rule 20, Rules of the Court of Criminal Appeals. Accordingly, the State’s motion is granted, and the judgment of the trial court is affirmed.

The Petitioner, Phillip McCormick, appeals pro se the Knox County Criminal Court’s summary dismissal of his petition for habeas corpus relief from the remainder of his forty-year sentence for a 1984 conviction. The Petitioner contends that (1) the trial court erred by finding that the State did not relinquish jurisdiction when it surrendered him to federal authorities to serve concurrent federal and state sentences for felonies he committed while on parole, (2) the State violated his due process rights by failing to hold a parole revocation hearing before transferring him, and (3) the trial court erred by dismissing his petition without appointing counsel. We affirm the judgment of the trial court.

A Fentress County Criminal Court Jury convicted the appellant, Kirby Whited, of tampering with evidence, a Class C felony. Following his conviction, the trial court imposed a sentence of three years, with fifty days to be served in jail and the remainder to be served on probation. On appeal, the appellant challenges the sufficiency of the evidence supporting his conviction and the sentence imposed by the trial court. The State concedes that the evidence is insufficient to support the appellant’s conviction. Upon review, we conclude that the evidence is insufficient; therefore, the appellant’s conviction must be vacated and the case dismissed.

This is a contract case. Appellant, a Nashville Country Club, hired Appellee, a real estate development and consulting firm, to help the Club procure the best price available for the sale of its real property. Appellee claimed that it was due fees under the parties’ written agreement. Following a hearing, the trial court entered judgment in favor of Appellee. Appellant appeals, arguing that: (1) the parties’ contract was not supported by adequate consideration; (2) the parties’ contract was void as against public policy based upon Appellants’ allegation that Appellee was acting as a broker; (3) the trial court erred in allowing parol evidence and in its interpretation of the terms of the parties’ agreement; and (4) the trial court erred in calculating Appellee’s damages. Discerning no error, we affirm and remand for determination of Appellee’s reasonable attorney’s fees and costs in defending this appeal. Affirmed and remanded.