APPELLATE COURT OPINIONS

A Davidson County Jury convicted Appellant, Kevin Lamont Church, of kidnapping and simple assault.  The trial court sentenced him to twelve years as a Range III, persistent offender.  The judgments were entered January 6, 2010.  A motion for new trial was never filed.  On July 6, 2011, Appellant filed a post-conviction petition requesting a delayed appeal.  The trial court granted the request on October 7, 2011, and Appellant filed a motion for new trial on November 8, 2011.  At the hearing on the motion for new trial, the State conceded that the simple assault conviction should be merged into the kidnapping conviction.  The trial court agreed and dismissed count two for assault.  The trial court denied the remaining arguments included in the motion on October 10, 2012.  Appellant subsequently filed a notice of appeal on November 13, 2012.  On appeal, Appellant argues that the evidence was insufficient to support his conviction for kidnapping.  The State argues that Appellant did not file a timely notice of appeal, and this Court should dismiss the appeal.  Although we agree with the State that the notice of appeal is untimely, we have decided to waive the timely notice of appeal in the interest of justice and address Appellant’s claim that the evidence was insufficient to support his conviction of kidnapping on the merits.  We have thoroughly reviewed the record on appeal and conclude that the evidence was sufficient to support Appellant’s conviction.
 

The Defendant, Levester Taylor, was convicted by a Davidson County jury for multiple counts of aggravated sexual battery and rape of a child.  The trial court imposed a sentence of 10 years at 100% for each aggravated sexual battery and 20 years at 100% for each rape of a child, and ordered the sentences to run consecutively for an effective sentence of 200 years in the Department of Correction.  On appeal, the Defendant argues that the evidence is insufficient to sustain his convictions and that the trial court erred imposing an effective sentence of 200 years.  Upon review, the Defendant’s judgments of conviction are affirmed, the sentences imposed by the trial court are vacated, and the case is remanded for a resentencing hearing, following the Defendant’s election to proceed under the pre-2005 sentencing act or the amended sentencing act accompanied by the Defendant’s written waiver of his ex post facto protections. 
 

The Defendant, Aivar Lang, pled guilty to one count of possession of drug paraphernalia, a Class A misdemeanor, and agreed to allow the trial court to determine his sentence.  After a sentencing hearing, the trial court sentenced him to eleven months and twenty-nine days in the county jail.  On appeal, the Defendant contends that his sentence is excessive.  After a thorough review of the record and applicable authorities, we conclude that no error exists in the sentence imposed by the trial court, but a corrected judgment form is required.  Therefore, the sentence is affirmed, and we remand the case for correction of a clerical error in the judgment.
 

The trial court denied Defendant’s motion to dismiss on the basis of the doctrine of prior suit pending and entered summary judgment in favor of Plaintiff under-insured/uninsured motorist insurance carrier. We hold that the action was barred under the doctrine of prior suit pending where the subject matter of the current lawsuit, namely, insurance coverage, was asserted by Plaintiff insurance carrier as a defense in an action previously filed by Defendant insured and pending in the circuit court. Summary judgment in favor of Plaintiff insurance carrier is reversed. This action is remanded to the trial court for dismissal in accordance with this Opinion.

This appeal concerns FirstBank’s request for a deficiency judgment against Defendants following a foreclosure sale of real property. FirstBank filed a motion for summary judgment, asserting that it was entitled to judgment as a matter of law because there were no issues of material fact remaining. Defendants objected, asserting that the property sold for an amount materially less than the fair market value. The trial court granted FirstBank’s motion, finding that Defendants failed to prove that the foreclosure price was materially less than the fair market value. Defendants appeal. We affirm the decision of the trial court and remand this case for proceedings consistent with this opinion.

Plaintiff appeals the trial court’s judgment in favor of Defendant in this action to recover amounts allegedly due under an oral loan agreement. We vacate the trial court’s judgment and remand the matter for findings of fact and conclusions of law as required by Tennessee Rule of Civil Procedure 52.01.

In this divorce action, the sole issue on appeal is the propriety of the trial court’s permanent parenting plan regarding the parties’ three children. Concerning co-parenting, the parties were alternating weeks with their children during the pendency of the divorce. At trial, the parties agreed to continuation of this schedule, which provided each party equal co-parenting time with the children. The issues announced for trial regarding the children were (1) which parent should be named primary residential parent and (2) which parent would have final decision-making authority. The trial court, however, chose to implement a “divided” custody arrangement, wherein father was awarded primary custody and decision-making authority during the school year while mother was awarded primary custody and decision-making authority during the summer. Mother appeals. Discerning no abuse of discretion, we affirm.

This is the second time this divorce case has been before this Court. Victor R. Peterson (“Husband”) filed the first appeal. We remanded the case to the trial court because we were “unable to determine what property was awarded to [Kathleen A. Peterson (“Wife”)] as . . . equitable division of property and what property was awarded as alimony in solido.” Peterson, 2012 WL 1413890 at *3. On remand, the trial court classified the parties’ property, valued all of the marital property except for some miscellaneous personal property, decreed a division of the marital property, and awarded Wife $10,000 in alimony in solido. Wife appeals. She argues that the division of marital property is not equitable and that the alimony award is inadequate. We affirm.

The defendant, Thomas Bolton, appeals his Shelby County Criminal Court jury convictions of vandalism, theft of property, and violations of the Solid Waste Disposal Act, challenging the sufficiency of the convicting evidence and the propriety of certain jury instructions. We affirm the convictions and sentences but remand for correction of clerical errors in the judgments.

In this divorce appeal, husband challenges the trial court’s decisions regarding the primary residential parent, rehabilitative alimony, the division of the marital estate, and the award of attorney fees. With the exception of the designation of alimony as “rehabilitative,” we find no error in the trial court’s decision.

The pro se petitioner, Daniel Lee Draper, appeals the summary dismissal of his petition for writ of habeas corpus. He argues that the trial court did not have jurisdiction to sentence him to life with the possibility of parole, that the habeas court erred in summarily dismissing his petition without a hearing, and that the habeas court erred in failing to treat his habeas petition as a post-conviction petition. After review, we affirm the summary dismissal of the petition.

This appeal involves the interpretation of a marital dissolution agreement. In the parties’ divorce, the wife was awarded the marital home and the associated debt on the home. In the parties’ marital dissolution agreement, the husband was required to pay alimony in an amount that covered half of the wife’s monthly mortgage payments. The alimony payments were to be made for fifteen years or until the mortgage on the marital home was “paid off in full.” The husband stopped making his alimony payments and the wife filed a contempt petition against him. While the contempt petition was pending, the wife fell behind on her mortgage payments and the house was sold in foreclosure. The husband then filed a petition to terminate his alimony obligation. After a hearing on both petitions, the trial court held the husband’s failure to pay alimony constituted willful contempt of court. Interpreting the marital dissolution agreement, however, the trial court also held that the husband’s alimony obligation ended when the marital home was sold in foreclosure, because at that point the mortgage was “paid off in full.” The wife now appeals. We decline to interpret the parties’ marital dissolution agreement in a manner that would terminate the husband’s alimony obligation if the foreclosure resulted from his contemptuous failure to pay alimony to the wife. Accordingly, we vacate the trial court’s decision and remand for further proceedings.

The defendant, Jeffrey Walton, was convicted by a Shelby County Criminal Court jury of vandalism over $10,000, a Class C felony, and burglary of a building, a Class D felony, for which he received sentences of fifteen years as a persistent offender and twelve years as a career offender, to be served consecutively, in the Department of Correction. On appeal, he challenges the sufficiency of the convicting evidence. After review, we affirm the judgments of the trial court.

Physicians filed an action for malicious prosecution and abuse of process against Patient after Patient voluntarily dismissed her medical malpractice lawsuit against them. Following a change in the applicable case law, Physicians voluntarily dismissed their malicious prosecution and abuse of process claims. Patient moved for attorney fees under Tenn. R. Civ. P. 37.03(2) as a sanction against Physicians for their failure to admit a matter requested under Tenn. R. Civ. P. 36.01. Patient also sought discretionary costs. The trial court found that Physicians had reasonable grounds to believe they might prevail on their claims, but granted Patient a partial attorney fee award. We reverse the award of attorneys fees and affirm the award of discretionary costs.

Petitioner, Anthony Clinton, was convicted by a Shelby County jury of robbery, a Class C felony, and was sentenced as a career offender to fifteen years in the Tennessee Department of Correction. Following an unsuccessful direct appeal, he filed the instant petition for post-conviction relief. The post-conviction court held an evidentiary hearing and denied relief. Appealing from the post-conviction court’s order, petitioner pursues the following claims of ineffective assistance of counsel: (a) failure to file a motion to suppress his identification; (b) failure to file a motion to suppress the evidence seized during the search of his person; and (c) failure to obtain copies of the store surveillance tapes and the 9-1-1 recordings. Following our review, we affirm the judgment of the post-conviction court.

Mother challenges the termination of her parental rights for failure to support. We find no need to address this issue because mother did not appeal the trial court’s findings of several other grounds for termination. Mother also disputes the trial court’s finding by clear and convincing evidence that termination is in the best interest of the children. We affirm the trial court.
 

This administrative appeal arises from the termination of a state trooperfrom his employment with the Tennessee Department of Safety for filing a meritless sexual harassment claim against a fellow employee. Finding substantial and material evidence in support of the decision to terminate the trooper, we affirm.

This multi-faceted business dispute, which arises in principal part from the real estate collapse of 2008, involves five limited liability companies, eight individuals who are either members or officers of the respective companies, 530 acres of undeveloped real estate, and $7 million of secured notes that were personally guaranteed by six of the individuals. Over the course of two years, SunTrust Bank, the holder of the notes, agreed to extensions of the original maturity date; a final extension was granted until August 7, 2008. A call for capital contributions was approved but it produced insufficient funds to payoff the debt.Thereafter, two of the individuals, one of whom was the president of Rock Creek, and both of whom personally guaranteed a portion of the debt, formed another entity which then acquired the notes from the bank. Rock Creek Development, LLC (“Rock Creek”), which owned the real estate, then agreed to sell a substantial portion of its property to pay off the balance owing on the notes. In an attempt to stop the sale, Rock Ivy Holding, LLC (“Rock Ivy”), one of three members of Rock Creek, filed this derivative action for itself and on behalf of Rock Creek against Rock Creek’s members: RC Properties, LLC; Linked, LLC; two officers of Rock Creek; and several individuals who were members of the defendant companies. The complaint alleged, inter alia, various conflicts of interests by the individual defendants and various breaches of statutory and contractual duties by members and/or officers. Pursuant to an agreed order, the sale proceeded, the net proceeds were held in the registry of the court, and the remaining claims went to trial. After eights days of a bench trial, the defendants moved to dismiss the complaint pursuant to Tenn. R. Civ. P. 41.02 at the close of the plaintiff’s case-in-chief.The trial court granted the motion and dismissed all of the plaintiff’s claims. Thereafter, several defendants filed various motions to recover their respective attorneys’ fees and expenses. Some of the motions were based on Tenn.Code Ann.§ 48-249804, which pertains to derivative actions, and others were based on indemnification provisions in Rock Creek’s Operating Agreement. The trial court granted some of the fee requests and denied others. In this appeal, Rock Ivychallenges the dismissal of its claims and the assessment of attorneys’ fees.Two individual defendants appeal the denial of their claims for attorneys’ fees. The holder of the notes appeals the denial of its claim for “default interest” and penalties. We affirm the trial court in all respects except for the trial court denying the claim for default interest on the notes. We have concluded that the holder of the notes is entitled to recover default interest from the time the notes were declared to be in default. Accordingly, this issue is remanded for further proceedings.

The father of a nine year old girl filed a petition seeking to legitimate the child, requesting that he be named primary residential parent, and asking that the mother be prevented from moving to Florida with the child. In her answer, the mother asked to be named as the child’s primary residential parent and, having already moved,to be allowed to remain in Florida with the child. After trial, the court ruled that there was no reasonable purpose in the mother’s proposed relocation and that the mother was to return to Tennessee with the child; the court entered a permanent parenting plan which designated the mother as primary residential parent and also ordered the father to pay a portion of the mother’s attorney fees. The mother appeals the court’s disposition of the petition to legitimate; the father appeals the award of fees to the mother. We affirm the decision to award fees to the mother, but vacate the award and remand for a redetermination of the amount; we affirm the court’s judgment in all other respects.

The plaintiff, a state prison inmate, appeals the trial court’s dismissal of his health care liability action against the defendant doctor and his complaint against the warden of the facility where he was treated by the doctor. The trial court granted the defendant doctor’s motion to dismiss based upon the plaintiff’s failure to comply with the requirements of the Tennessee Medical Malpractice Act (“TMMA”). See Tenn. Code Ann. §§ 29-26-115 to -122 (Supp. 2013). The trial court also granted the warden’s motion to dismiss upon finding that the plaintiff’s complaint contained no factual allegations against the warden. Discerning no error, we affirm.

After taking a non-suit, Bobby J. Byrge, individually and as next of kin for the decedent Julia Kay Byrge, and the Estate of Julia Kay Byrge (“Plaintiff”) filed a second healthcare liability suit against Parkwest Medical Center (“Parkwest”) and Dr. John C. Showalter, M.D.1 Parkwest filed a motion to dismiss, and after a hearing, the Trial Court granted Parkwest’s motion finding and holding that Plaintiff’s suit was barred by the statute of limitations. Plaintiff appeals to this Court asserting that his suit was not barred as he was entitled to rely upon Tenn. Code Ann. § 28-1-105, the saving statute. We affirm finding and holding, as did the Trial Court, that Plaintiff’s first suit was not timely filed because Plaintiff did not comply with Tenn. Code Ann. § 29-26-121, and, therefore, Plaintiff could not rely upon Tenn. Code Ann. § 28-1-105 to save his second suit.

This case involves issues of breach of contract and negligence. After a bench trial, the trial court found in favor of the Defendant/Appellee manufacturer. Because the trial court’s order does not contain sufficient findings of fact and conclusions of law to satisfy the requirements of Rule 52.01 of the Tennessee Rules of Civil Procedure, we vacate the judgment of the trial court and remand for the entry of an order with appropriate findings of fact and conclusions of law.

This is a will contest. The alleged will was signed by three witnesses. At the hearing on the will contest, two of the three witnesses and a notary public testified about the signatures on the purported will. The trial court held that the document was the decedent’s validly executed will and admitted it to probate. On appeal, the contestant of the will argues that the will proponent failed to satisfy the statutory requirement of proof from all living witnesses, if to be found, because the third witness to the will did not appear or testify. We hold that the proponent of the purported will was required to either submit the testimony of all living witnesses or show that a living witness whose testimony was not proffered was not to be found. However, because the trial court failed to make findings of fact and conclusions of law regarding the availability of the third witness, as required under Tenn. R. Civ. P. 52.01, we must vacate the trial court’s decision and remand.

The pro se petitioner, Terry V. Johnson, appeals as of right from the Johnson County Circuit Court’s order denying his petition for writ of habeas corpus alleging that his 2005 conviction for sale of less than .5 grams of cocaine is void because the trial court failed to award pretrial jail credit. The State has filed a motion to affirm the trial court’s judgment pursuant to Rule 20 of the Rules of the Tennessee Court of Criminal Appeals. Following our review, we conclude that the State’s motion is well-taken and affirm the order of the trial court.

I concur in the results reached in the majority opinion.  Indeed, I join in the majority opinion on all but one issue.  I write separately to address the issue of the trial court’s admission of the prior bad act of the Defendant’s exposing himself to Pamela through the back window of a truck “a few days earlier.”  The majority holds that it was error, albeit harmless, for the trial court to admit this evidence under Rule 404(b) of the Rules of Evidence.  The majority concludes that this evidence was only marginally relevant, and, therefore, the risk of unfair prejudice to the Defendant outweighed the relevance of the evidence.  The majority emphasizes that the Defendant also was on trial for indecent exposure.