APPELLATE COURT OPINIONS

This case involves claims asserted by a cancer patient against his radiation oncologist, the hospital where he was treated, and the developer of the radiation therapy system used to treat the patient. The patient alleges that the defendants failed to disclose that the treatment posed a risk of radiation damage to surrounding tissue and organs and misrepresented the safety of the treatment, such that he would not have agreed to undergo the treatment if he had known of the risks. The patient’s wife also asserted a claim for loss of consortium. All three defendants moved for summary judgment on numerous grounds. The trial court granted summary judgment to each of the defendants, and the patient and his wife appeal. We conclude that the plaintiffs’ claims against all three defendants are barred by the statute of limitations. Accordingly, we vacate in part, affirm as modified, and remand for further proceedings.

I concur, reluctantly, with the entirety of the opinion of the Court. I concur because this is the result mandated by statute and case law. I do so reluctantly because this case is the latest in a long line of healthcare liability actions dismissed on technical grounds since the enactment of the sections of the Health Care Liability Act governing pre-suit notice adopted by our General Assembly in 2008. This Court has seen healthcare liability case after case brought by Tennessee citizens dismissed without any determination of whether the case has any merit.

The Petitioner, Stephen D. Lester, Sr., appeals the post-conviction court’s dismissal of his petition for post-conviction relief as untimely. On appeal, he argues that due process requires tolling of the statute of limitations because his untimely filing was due to misrepresentations by trial counsel. After review, we affirm the dismissal of the petition.

This is a jury case. Appellants sued Appellee, hotel, for violation of the Tennessee Consumer Protection Act (“TCPA”) and the Tennessee Identity Theft Deterrence Act (“TITDA”). The trial court granted a pre-trial motion for summary judgment as to Appellants’ TITDA claims. The remaining TCPA claims proceeded to trial, and the trial court delivered a modified jury instruction as a sanction against Appellee for alleged discovery abuse. The jury returned a verdict in favor of Appellee. Appellants appeal.  Appellee appeals the trial court’s denial of its request for attorney’s fees and costs pursuant to Tennessee Rule of Civil Procedure 68. We reverse the trial court’s denial of Appellee’s costs pursuant to Rule 68; the trial court’s order is otherwise affirmed.

The Petitioner, Marlon Duane Kiser, filed in the Hamilton County Criminal Court a petition for a writ of error coram nobis, seeking relief from his conviction of first degree murder and resulting sentence of death. In the petition, he alleged that newly discovered evidence and recanted testimony established that someone else committed the murder. The coram nobis court denied the petition. On appeal, the Petitioner challenges the court’s ruling. Upon review, we affirm the judgment of the coram nobis court.

Petitioner, Michael Davis, appeals the denial of his petition for post-conviction relief from his conviction for second degree murder. On appeal, Petitioner argues that he was denied due process of law when the post-conviction court refused to grant Petitioner a continuance to present an expert witness and failed to address all of the issues presented in its written order. Additionally, Petitioner claims that he received ineffective assistance of counsel. After thorough review, we determine that Petitioner was afforded due process and received effective assistance of counsel. Thus, we affirm the judgment of the post-conviction court.

The father in this post-divorce dispute challenges the trial court’s determinations regarding his child support arrearage, medical insurance premiums, credits against the arrearage, and attorney fees. Finding no merit to father’s arguments, we affirm the trial court’s decision.

The Petitioner, Richard Kelley, appeals the Montgomery County Circuit Court’s denial of his petition for post-conviction relief from his convictions of four counts of rape of a child, three counts of aggravated sexual battery, and one count of misdemeanor assault and resulting effective sentence of thirty years to be served at 100%. On appeal, the Petitioner contends that he received the ineffective assistance of counsel at trial. Based upon the record and the parties’ briefs, we affirm the judgment of the post-conviction court.

This case involves the plaintiff’s purchase of real property and the alleged fraud by others as to the property’s real value. On December 20, 2016, the plaintiff filed a pro se complaint against several defendants, including Regions Financial Corporation. The plaintiff labeled his six counts as sounding in fraud in the inducement, breach of contract, conspiracy, intentional infliction of emotional distress, negligent infliction of emotional distress, and improper foreclosure of deed of trust. The trial court dismissed the plaintiff’s complaint against the defendants, holding that the complaint is barred by the three year statute of limitations. See Tenn. Code Ann. § 28-3-105 (2017). In so holding, the court determined that the complaint, on its face, shows that the plaintiff, as early as 2006, knew, or should have known, that the property was worth substantially less than the plaintiff paid for it and, as a consequence, he had been injured by the acts of others. In response, the plaintiff argues that the trial court erred when it failed to rely upon the sixyear statute of limitations as to his claim for breach of contract. See Tenn. Code Ann. § 28-3-109(a)(3) (2017). Plaintiff appeals. We affirm

The Defendant, Bradley Mitchell Eckert, committed three acts of vandalism and one burglary when he was sixteen years old, and the juvenile court granted a motion to transfer the proceedings to criminal court. The trial court found the Defendant guilty of vandalism of property valued at more than $1,000 but less than $2,500; vandalism of property valued at $10,000 or more but less than $60,000; vandalism of property valued at $60,000 or more but less than $250,000; and burglary. After a hearing, the trial court sentenced the Defendant to serve twelve years in prison. The Defendant appeals the juvenile court’s decision to transfer the proceedings, and he appeals his sentence. We conclude that there was no abuse of discretion, and we affirm the judgments.

Employee, Wesley David Fly, was injured in the course of his employment, and the parties agree that Employee is permanently and totally disabled. The circuit court found that Employee was not capable of gainful employment and awarded benefits for permanent total disability. On appeal, Employer, Mr. Bult’s, Inc., argues that non-work-related factors acting independently of Employee’s work injury contributed to his disability. The appeal has been referred to the Special Workers’ Compensation Appeals Panel for a hearing and a report of findings of fact and conclusions of law pursuant to Tennessee Supreme Court Rule 51. We affirm the judgment of the circuit court.

The Administrator CTA of Decedent’s estate filed a petition, against Decedent’s daughter, to recoup assets of the estate. In the final year of Decedent’s life, Appellant transferred almost $400,000 of Decedent’s assets to herself using a power of attorney she obtained after her brother’s power of attorney was revoked. The trial court determined that the transfers were self-dealing transactions and that Appellant breached her fiduciary duty to Decedent. The trial court entered a judgment against Appellant in the amount of $116,747.85 plus pre-judgment interest. Additionally, the trial court declared the quit claim deed executed in favor of Appellant to be void ab initio. Discerning no error, we affirm.

Parents appeal the termination of their parental rights. On April 24, 2013, the then threeyear- old child was removed from the parents’ home after a visitor to the home notified the Department of Children Services that he saw the child behind what appeared to be a jail-cell, making only grunting noises. The child has been in foster care ever since. After working with the parents for nearly two years, the Department filed a petition to terminate the parents’ parental rights. Following the first trial in October of 2015, both parents’ rights were terminated; however, that decision was vacated and the case remanded “for a new hearing so that a complete transcript may be produced. . . .” Order, In re Charles R., No. M2015-02347-COA-R3-PT (Tenn. Ct. App. Nov. 22, 2016). Following a second trial in September and October of 2017, the trial court entered an order on November 21, 2017, terminating both parents’ rights. We affirm.

The parties to a wrongful death action reached a mediated settlement under which the settlement proceeds were divided between the surviving spouse and the deceased’s children. After the settlement agreement was judicially approved and the proceeds disbursed, the trial court ruled that the surviving spouse had waived his right to collect any settlement proceeds. The deceased’s children filed a legal malpractice action against the estate of the attorney who had represented their guardian ad litem in the wrongful death action because he failed to contest the surviving spouse’s standing. As part of the settlement of the legal malpractice action, the children assigned their claims against the surviving spouse to the estate of the attorney. The estate then filed this equitable action
against the surviving spouse and his girlfriend, seeking recovery of the settlement proceeds and a constructive trust on any property purchased with those proceeds. Both the estate and the surviving spouse filed cross-motions for summary judgment. The trial court denied the spouse’s motion but granted the estate summary judgment based on unjust enrichment. We reverse the grant of summary judgment.

Appellant alleges intentional infliction of emotional distress, negligent infliction of emotional distress, and negligent hiring, supervision, and retention against a University and its employees. The trial court granted Appellees’ motion to dismiss for failure to state a claim upon which relief can be granted. Discerning no error, we affirm.

The Defendant, Matthew P. Ladewig, appeals as of right from the Madison County Circuit Court’s judgment of conviction of theft over $500. On appeal, the Defendant contends that the trial court abused its discretion in denying his motion for mistrial after a witness for the prosecution, while testifying, referred to the Defendant’s possible involvement in a similar investigation. Following our review, we affirm the judgment of the trial court.

Joseph J. Levitt (“Owner”), the owner of the Applewood apartment complex located in Oak Ridge, Tennessee, appeals the September 14, 2016 order of the Chancery Court for Anderson County (“the Trial Court”) granting summary judgment to the City of Oak Ridge, the Oak Ridge Board of Building and Housing Appeals, and Denny Boss (collectively “the City”) in this suit seeking to overturn the City’s order that six of the Applewood buildings be vacated and demolished. Owner raises issues on appeal regarding the adminstrative warrants and whether the decision of the board was arbitrary, capricious, or illegal. We find and hold that the adminstrative warrants satisfied the requirements of Tenn. Code Ann. § 68-120-117 and that the decision of the board was not arbitrary, capricious, or illegal. We, therefore, affirm the Trial Court’s grant of summary judgment.

A bondsman for Appellant Cumberland Bail Bonding (“Cumberland”) was arrested after law enforcement determined that he was trading bonds for sex. A panel of circuit court judges entered a sua sponte order suspending Cumberland’s authority as a bonding company in Marion County and a subsequent order suspending the authority of A Bail Bonding Company (“A Bail Bonding”) and A+ Bail Bonding, whose proprietor was also the owner of Cumberland. After a hearing, the trial court determined that the bondsman engaged in professional misconduct, that Cumberland did not explicitly prohibit the misconduct in its employee manual, and that Cumberland failed to notify the court of the bondsman’s arrest. The bonding privileges of all three Appellants were suspended for a period of six months. The Appellants challenge the suspension, asserting that they were denied their due process rights and that the trial court erred in suspending their bail bonding authority. The State responds that the appeal is moot but that there was in any event no error. We have addressed the underlying issues and have determined that the trial court’s actions were in error. Accordingly, the judgment of the trial court is vacated.

This appeal arises from a delinquent taxpayer action. The appellants were lienholders on a parcel of real property sold to a separate purchaser during a delinquent tax sale. Following the tax sale, the lienholders filed a petition for redemption. In response, the purchaser filed a motion to protest the validity of the lien or, alternatively, a claim to recover $8,579.60 in “lawful charges” that he and a friend had incurred to clear debris and personalty from the real property. The lienholders then filed a “cross claim” against the purchaser, alleging conversion and trespass to chattels. The lienholders sought an award of actual damages for removal of personalty and a “steel building” from the real property, as well as punitive damages for the purchaser’s allegedly malicious actions. The purchaser filed an answer, denying all substantive allegations. The purchaser subsequently withdrew his objection to the validity of the lien. Following a bench trial, the trial court granted the lienholders’ petition for redemption upon the conditions that the lienholders pay all delinquent taxes, penalties, and fees; reimburse the purchaser and his friend in the amount of $8,579.60 for expenses incurred in the removal of debris and personalty; and reimburse the purchaser and his friend in the amount of $600.00 for storage of personalty. The lienholders have appealed. Having determined that the order appealed from fails to resolve the lienholders’ claims of conversion and trespass to chattels, we conclude that it is not a final order. Accordingly, we dismiss the appeal for lack of subject matter jurisdiction.

This is a termination of parental rights case. Appellant/Father appeals the trial court’s termination of his parental rights to the two minor children on the grounds of: (1) abandonment by an incarcerated parent by wanton disregard, Tenn. Code Ann. §§ 36-1- 113(g)(1) and 36-1-102(1)(A)(iv); (2) abandonment by failure to provide a suitable home, Tenn. Code Ann. §§ 36-1-113(g)(1) and 36-1-102(1)(A)(ii); (3) substantial noncompliance with the reasonable requirements of the permanency plan, Tenn. Code Ann. §§ 36-1-113(g)(2) and 37-2-403(a)(2). Appellant also appeals the trial court’s finding that termination of his parental rights is in the children’s best interests. Because there is clear and convincing evidence to support both the grounds for termination of Appellant’s parental rights and the trial court’s finding that termination is in the children’s best interest, we affirm.

This appeal involves a dispute between an insurance company and one of its insureds. Following a fire to her home, the insured brought suit requesting that the insurance company be required to pay a claim for personal property damage. The insurance company defended on the ground that the insurance policy was void because a misrepresentation by the insured on her application for insurance increased the “risk of loss.” See Tenn. Code Ann. § 56-7-103. The trial court agreed with the insurance company and granted summary judgment in its favor. For the reasons stated herein, we affirm.

Defendant, Alina Frankie Sherlin, was indicted for first degree murder. After a jury trial, she was found guilty of second degree murder and sentenced to fifteen years in incarceration. The trial court denied the motion for new trial, and Defendant appealed to this Court. On appeal, Defendant raises the following issues for our review: (1) whether the trial court erred by admitting a videotape from the ambulance ride depicting Defendant’s actions after the incident; (2) whether the trial court erred by admitting the preliminary hearing testimony of a witness that the trial court deemed unavailable; (3) whether the trial court erred by permitting the State to call a surprise witness; (4) whether the trial court erred by excluding testimony about the victim’s motorcycle gang membership; (5) whether the trial court erred by prohibiting Defendant from introducing nude photographs and sexual videos of a witness for impeachment purposes; (6) whether the trial court properly excluded testimony regarding a threat made by the victim toward Defendant; (7) whether the trial court erred by excluding Defendant’s medical records; (8) whether the trial court erred by refusing to allow defense counsel to point out specific areas of photographs that were discussed during the videotaped deposition of the unavailable witness; (9) whether the trial court erred by refusing to grant Defendant’s motion for judgment of acquittal at the close of the State’s proof; (10) whether the State committed prosecutorial misconduct during opening and closing statements (11) whether the evidence was sufficient to support the conviction ; and (12) whether cumulative error by the trial court necessitates a reversal of Defendant’s conviction. For the following reasons, the judgment of the trial court is affirmed.

Paul A. Westby (“Employee”) suffered gradual hearing loss during his employment with Goodyear Tire & Rubber Company (“Employer”). Employee filed a workers’ compensation claim when Employer closed its plant. Employer argued the claim was barred by the statute of limitations because Employee failed to report his injury despite learning of his hearing loss years earlier. The trial court allowed the claim based on the “last-day-worked” rule and awarded Employee 60 percent permanent partial disability (“PPD”) to both ears. Employer has appealed, arguing that the trial court erred in applying the last-day-worked rule and that the PPD award is excessive. This appeal has been referred to the Special Workers’ Compensation Appeals Panel for a hearing and a report of findings of fact and conclusions of law pursuant to Tennessee Supreme Court Rule 51. We affirm the judgment of the trial court in all respects.

This is an accelerated interlocutory appeal as of right from the denial of a motion for recusal. In their petition for recusal appeal, Petitioners admit that they did not promptly file the recusal motion after the facts forming the basis for the motion became known. As such, Petitioners waived their right to challenge the probate judge’s impartiality. The record is also insufficient to support a finding of error on the part of the probate judge because the motion for recusal was unaccompanied by an affidavit as required by the rules. Thus, we affirm the probate court’s denial of the recusal motion.

Plaintiff sued a defendant for filing an unauthorized financing statement. Defendant filed a motion to dismiss and later a motion to disqualify the judge, both of which were denied. The court also ordered Defendant to file an answer. When Defendant failed to comply, the court granted Plaintiff’s motion for a default judgment. Defendant’s husband intervened shortly thereafter, claiming that he filed the financing statement. Defendant’s husband likewise filed a motion to dismiss and a later motion to disqualify. The court denied both motions and ordered husband to file an answer. When Husband failed to do so, the court granted Plaintiff’s motion for a default judgment against Husband. Husband filed a motion to set aside the default judgment, which was denied. This appeal followed. We affirm. Deeming this appeal frivolous, we award Plaintiff attorney’s fees incurred on appeal.