APPELLATE COURT OPINIONS

Defendant, Whelchel Randall Hogan, pled guilty to possession of less than .5 grams of cocaine with the intent to sell or deliver after the denial of a motion to suppress. As part of the guilty plea, Defendant reserved a certified question of law regarding the legality of his traffic stop. After a review of the record, we reverse the judgment of the trial court and dismiss Defendant’s conviction.

The Petitioner, James Lackey, appeals from the denial of post-conviction relief, alleging that (1) trial counsel provided ineffective assistance in failing to call his brother as a defense witness at trial, and (2) the post-conviction court abused its discretion in failing to consider his brother’s recorded interview as substantive evidence at the post-conviction hearing. We affirm the judgment of the post-conviction court.

Father appeals the trial court’s decision to terminate his parental rights to two children on the grounds of (1) incarceration under a sentence of ten or more years, and the children were under eight at the time the sentence was entered, (2) wanton disregard for the welfare of the children, and (3) failure to manifest an ability and willingness to personally assume legal and physical custody or financial responsibility of the children, and placing the children in Father’s care would pose a risk of substantial harm to the physical and psychological welfare of the children. He further challenges the trial court’s finding by clear and convincing evidence that termination of his parental rights was in the best interest of the children. We affirm in part and vacate in part.

The Petitioner, Oscar Polk, Jr., appeals from the denial of post-conviction relief, alleging that trial counsel was ineffective in failing to argue at trial that the Petitioner was not tested for gunshot residue. Upon our review, we affirm the judgment of the
post-conviction court.

The petitioner, Tracy Looney, appeals the denial of his post-conviction petition, arguing the post-conviction court erred in finding he received effective assistance of counsel at trial. After our review of the record, briefs, and applicable law, we affirm the denial of the petition.

Shelby County grand jury indicted the defendant, Johnny Jenkins, for second degree murder (Count 1), employing a firearm during the commission of a dangerous felony as related to Count 1 (Count 2), attempted second degree murder (Count 3), and employing a firearm during the commission of a dangerous felony as related to Count 3 (Count 4). After trial, a jury convicted the defendant of employing a firearm in Counts 2 and 4, voluntary manslaughter in Count 1, and attempted voluntary manslaughter in Count 3. Upon the defendant’s motion for new trial, the trial court dismissed Count 2 but upheld his remaining convictions. The defendant now challenges the sufficiency of the evidence supporting his convictions and several rulings of the trial court relating to the admission of evidence and jury instructions. Based upon our review of the record, we reverse and vacate the defendant’s conviction in Count 1 for voluntary manslaughter. However, because the proof is sufficient to support the lesser-included offense of reckless homicide, which was charged to the jury, we remand this matter to the trial court for entry of an amended judgment reflecting a conviction for reckless homicide and for resentencing on this modified conviction. The defendant’s convictions for attempted voluntary manslaughter in Count 3 and employing a firearm in Count 4 are affirmed. Accordingly, the trial court’s judgments are affirmed in part and reversed in part, and the case is remanded for a new sentencing hearing.

After a defendant in an earlier action settled the claims against him, the lawyer representing the plaintiffs in the earlier action notified a regulatory agency of the defendant’s alleged conduct at issue in the earlier action. The defendant/current plaintiff filed a breach of contract action against the lawyer, asserting that the lawyer breached the terms of the settlement agreement by filing a complaint against him with the regulatory agency. The lawyer defended the action by claiming that the settlement agreement violated public policy and was unenforceable. The trial court held that the settlement agreement was not contrary to public policy and entered judgment for the plaintiff. The lawyer appealed, and we affirm the trial court’s judgment.

In this appeal of the juvenile court’s determination of a petition to establish visitation, the father appeals the setting of supervised therapeutic visitation for him. The father argues that the court disregarded evidence that was favorable to him, that the court erred in relying upon testimony of the child’s counselor, and that the court erred in awarding attorney’s fees to Mother. Upon our review, we vacate the decision setting the father’s visitation and remand the case for the court to enter a judgment that discusses the factors set forth at Tennessee Code Annotated 36-6-106(a)(1)-(15) and makes appropriate findings relative thereto; we conclude that Father has waived any issue pertaining to the testimony of the child’s counselor, as he failed to object to the testimony at trial; in all other respects, we affirm the judgment of the trial court.

In our resolution of this appeal, we hold that the General Release, which the parties executed when Case No. 2014-CV-170 settled, was not against public policy. I concur with that conclusion, under the facts presented.

Donald R. Loveless (“Employee”) alleged he sustained a compensable injury on February 9, 2014, when he fell in the course and scope of his employment with the City of New Johnsonville (“Employer”). Following trial, the trial court awarded permanent partial disability benefits. Employer appeals, contending Employee did not sustain a compensable injury. 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 reverse the trial court’s judgment.

Defendant, Joseph H. Goostree, complains on appeal that the trial court improperly sentenced him to serve the balance of his eight-year sentence after he admitted to multiple violations of the conditions of his Community Corrections sentence. Because the trial court did not abuse its discretion, we affirm the judgment of the circuit court and remand for entry of a judgment form dismissing Count 1 of the indictment.

A patient in a state psychiatric facility was killed by another patient. The surviving spouse of the deceased patient brought suit against the State and was awarded damages for the wrongful death of her husband. Because the Tennessee Health Care Liability Act applies to the surviving spouse’s claim, and because she failed to comply with the Act’s requirements of pre-suit notice and good faith certification, we must reverse the decision of the Claims Commission.

The plaintiff brought this action under Tennessee Code Annotated section 40-33-215 after a Knox County deputy seized a vehicle in which the plaintiff had a perfected security interest. The Tennessee Department of Safety and Homeland Security and Knox County both filed motions to dismiss the complaints against them on sovereign immunity grounds. After the motions to dismiss were denied, permission to appeal under Rule 9 was granted. In this interlocutory appeal, we have been asked to determine whether the trial court properly ruled on the sovereign immunity issue. After review, we affirm the trial court’s denials of the motions to dismiss and remand this matter to the trial court for further proceedings.

The Petitioner, Carmel Borum, appeals from the denial of post-conviction relief, alleging he received ineffective assistance of counsel. He specifically argues trial counsel was ineffective in failing to challenge ownership of the stolen automobile and in failing to require the State to prove the value of the automobile. Upon our review, we affirm the judgment of the post-conviction court.

Following the post-conviction court’s granting of a delayed appeal, the petitioner challenges the trial court’s denial of his request for an instruction charging the jury that Jason McCollum was an accomplice as a matter of law. After reviewing the record and considering the applicable law, we conclude the post-conviction court did not follow the proper procedures in granting a delayed appeal and remand the case to the post-conviction court for further proceedings consistent with this opinion.

The pro se appellants, Travis Hewitt and Dustin Hewitt, seek to appeal from a final order entered on October 17, 2018. The Notice of Appeal was not filed until December 3, 2018, more than thirty (30) days from the date of entry of the final order. The appellants accompanied their Notice of Appeal with a motion asking this Court to accept the latefiled notice as having been timely filed. The appellee, Karin McClain, filed a motion to dismiss this appeal arguing, in part, that the Notice of Appeal was not timely filed. Because it appears from all the pleadings filed in this case that the Notice of Appeal was not timely filed, we have no jurisdiction to consider this appeal and no discretion to waive the filing of a timely Notice of Appeal pursuant to Rule 4(a) of the Tennessee Rules of Appellate Procedure.

Father petitioned to terminate the parental rights of the mother of his child. Father later married and, along with his spouse, joined in an amended petition for termination of parental rights and for adoption. The amended petition alleged mother abandoned the child by failure to visit and failure to support. On the date scheduled for trial, Mother failed to appear, and her attorney was denied a continuance. Following the trial, the juvenile court found by clear and convincing evidence that mother had abandoned her child by willful failure to visit and willful failure to support and a third statutory ground not asserted in the amended petition. The court also found by clear and convincing evidence that termination of mother’s parental rights was in the child’s best interest. On appeal, mother challenges the court’s subject matter jurisdiction. Mother also asserts that the court erred in denying her request for a continuance and that the proof was less than clear and convincing as to the grounds for termination and the child’s best interest. We conclude that the record only supports one statutory ground for termination of parental rights, abandonment by willful failure to visit. Otherwise, we affirm the judgment.

The defendant, Sarah Brinkman, appeals from the revocation of the probationary sentence imposed for her conviction of introducing contraband into a penal institution, arguing that the trial court erred by ordering her to serve 180 days’ incarceration before returning to probation. Discerning no error, we affirm.

At issue in this appeal is whether nurse case management fees are recoverable as part of an employer’s workers’ compensation subrogation lien under Tennessee Code Annotated section 50-6-112. The trial court answered this question in the negative and also determined that the employer’s subrogation lien should be reduced by attorney’s fees awarded to the employee’s attorney. For the reasons stated herein, we affirm the judgment of the trial court.

The Defendant-Appellant, Michael Lee Hufford, appeals from the order of the Sullivan County Criminal Court revoking his probation. On appeal, the Defendant argues that (1) the trial court erred in denying his motion to dismiss the violation of probation affidavit and arrest warrant, and (2) the trial court erred in revoking his probation and ordering him to serve the remainder of his sentence in confinement. Upon review, we affirm the judgment of the trial court.

Defendant Judith Roney hired Darel Puller as a handyman to do periodic odd jobs in maintaining her house. Mr. Puller died in an accident when he fell from defendant’s roof while clearing it of debris. No one witnessed the accident. A housekeeper found him unconscious on a patio, with an extension ladder lying on the ground next to him. Defendant testified that she had not spoken to Mr. Puller the day of the accident, and that she did not know he was going to get her ladder from a back garage and use it to get on the roof. She also said that the ladder was probably at least forty years old and that it was missing one of the extension latching hooks. Mr. Puller’s widow, Belinda Puller, brought this action alleging defendant was negligent in failing to warn him of the defective condition of the ladder. Defendant moved for summary judgment, which was granted by the trial court on the ground that “the Plaintiff is unable to establish in any way, the cause of the injury to the Plaintiff or the relation of the Defendant to the Plaintiff’s injury.” We affirm.

Mother appeals the termination of her parental rights, arguing that termination was not in the children’s best interest. We conclude that clear and convincing evidence supports both the grounds for termination found by the trial court and the trial court’s best interest determination.

Tina E. Hayes (“Employee”) alleged that she sustained a compensable injury to her left knee on April 8, 2015, in the course of her work as a stocker for Costco (“Employer”). She alleged that this injury required her to undergo a left knee replacement surgery. The Court of Workers’ Compensation Claims held that Employee failed to establish by a preponderance of the evidence a compensable injury or aggravation arising primarily out of and in the course and scope of her employment with Employer. Employee has appealed. 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.

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The defendant, Jerry Ray Oaks, appeals his Carter County Criminal Court jury conviction of vehicular homicide, claiming that the trial court erred by denying his motion to suppress the results of a warrantless blood draw, that the defendant should have been permitted to argue the results of a vehicle inspection during closing argument, and that the evidence is insufficient to support his conviction of vehicular homicide. The trial court erred by finding that exigent circumstances justified the warrantless blood draw. Accordingly, we reverse the defendant’s conviction of vehicular homicide and remand the case for a new trial.

I respectfully disagree with the majority’s conclusion that the trial court erred in denying the defendant’s motion to suppress. In my opinion, based on the proof presented at the suppression hearing and at trial, the trial court correctly determined that there were exigent circumstances justifying the warrantless blood draw. For the reasons that follow, I would affirm the defendant’s conviction of vehicular homicide.