APPELLATE COURT OPINIONS

In this post-divorce custody dispute, mother challenges the trial court's decision to change the primary residential parent to father. The trial court found mother's allegations of sexual abuse to be unfounded, and the evidence does not preponderate against the trial court's determination. We find no error in the trial court's modification of the primary residential parent or in its denial of mother's requests for post-judgment relief. We therefore affirm.

We granted this appeal to determine whether the admission into evidence of an automobile license tag number observed and written down by a bystander near the crime scene who did not appear at trial violated the defendant’s right to confrontation under the federal and state constitutions. A few seconds after being robbed at her place of employment, the victim ran out of the business, told a bystander that she had been robbed, and asked the bystander to observe the tag number of the vehicle operated by the man who had just left the business. The bystander did so and then came inside the store to write the number down for the victim. The victim added other descriptive information about the robber to the same piece of paper and then turned it over to the police. The tag number was traced to a vehicle owned by the defendant, whom a jury ultimately convicted of one count of robbery. The Court of Criminal Appeals reversed the conviction, holding that the written tag number was “testimonial hearsay” within the meaning of Crawford v. Washington, 541 U.S. 36 (2004), and Davis v Washington, 547 U.S. 813 (2006), and concluding that the statement’s admission was plain error. Based on our objective review of the circumstances surrounding the statement, we conclude that the written tag number was “nontestimonial hearsay” that did not implicate the defendant’s right of confrontation and was admissible as an excited utterance. We reverse the judgment of the Court of Criminal Appeals and reinstate defendant’s conviction.

The petitioner, Jamie Bailey, appeals the denial of his petition for post-conviction relief from his three first degree murder convictions, arguing that he was denied the effective assistance of counsel and that his guilty pleas were therefore unknowing and involuntary. Following our review, we affirm the denial of the petition.

This appeal involves subject matter jurisdiction over a petition for a writ of certiorari. The petitioner inmate was convicted of a disciplinary offense by the Department of Correction disciplinary board. The inmate timely filed a petition in the trial court, challenging the legality of the board's decision. The petition was not sworn. The respondent Department of Correction filed a motion to dismiss for failure to comply with the statutory verification requirement for such a petition. Subsequently, after the limitations period had lapsed, the petitioner inmate filed a motion to amend the petition to satisfy the verification requirement. The trial court found that it did not have subject matter jurisdiction to adjudicate the motion to amend and dismissed the petition. The petitioner now appeals. We affirm.

On August 10, 2001, Petitioner, Matthew Melton Jackson, pled guilty in Sumner County Circuit Court to four counts of aggravated robbery. The trial court sentenced Appellant to four, ten-year sentences to be served concurrently with each other, but consecutively to a previous sentence. On August 7, 2009, Petitioner filed a Petition for Post-conviction Relief arguing that a decision of this Court rendered after the entry of his guilty plea created a constitutional right that should be given retroactive application. Alternatively, he also argues that his incarceration in another state required a tolling of the statute of limitations. The postconviction court summarily dismissed his petition. After a thorough review of the record, we affirm the dismissal of his petition.

This is a dispute between two insurance companies, each of which provided liability insurance for a Captain D's restaurant in Mississippi. The defendant, Federal Insurance Company, provided the primary coverage for Captain D's with policy limits of $ 1,000,000. The plaintiff, Great American Insurance Company of New York, provided excess coverage for the benefit of Captain D's. When an action was filed against the insured in Mississippi for serious and permanent injuries sustained by a 15 year-old minor at a Captain D's, Federal provided the [*2] defense for Captain D's. The jury returned a verdict of $ 20.8 million against Captain D's. The next day, Federal sent a letter to its insured, Captain D's, and to the excess carrier, Great American, offering to pay its policy limits of $ 1,000,000 toward the judgment; however, Federal's "offer to pay" was not communicated to Foradori, the plaintiff in the Mississippi action. Federal appealed the $ 20.8 million Mississippi judgment on behalf of Captain D's, but the judgment was affirmed. Post-judgment interest of $ 2,269,169 accrued during the appeal. When the judgment became final, Federal paid its policy limits of $ 1,000,000, but no interest. Great American paid the balance of the judgment plus all of the post-judgment interest.

The defendant, Edward Garcia Summers, was indicted for possession with the intent to sell .5 grams or more of a substance containing cocaine, possession of marijuana, and possession of drug paraphernalia, all charges based upon evidence seized during a search of his residence. The defendant filed a motion to suppress the evidence, alleging that there was no probable cause to support the issuance of the search warrant. The trial court granted the defendant's motion, and the State now appeals. Upon review, we reverse the judgment of the trial court and remand for further proceedings.

Two trade contractors alleged that the City breached its contract with them by failing to take reasonable measures to guard against delays and disruptions by other contractors in the City's coordination, management, and scheduling of the contractors and by failing to pay the retainages they were due. The contractors sought damages for the delays. The City raised three defenses: (1) the "no damages for delays" provision of the contracts; (2) untimely notice of claims by the contractors; and (3) the contractors' acknowledgment and acceptance of time extensions without a reservation for increased compensation in the change orders they executed. The trial court concluded that all three of the City's defenses failed and awarded damages to the contractors. We affirm the trial court's decisions.

A Montgomery County jury convicted the Defendant, Troy Allen Pruitt, of two counts of aggravated robbery and two counts of fraudulent use of a credit card, and the trial court sentenced him to an effective sentence of fifteen years in the Tennessee Department of Correction ("TDOC"). On appeal, the Defendant contends: (1) the evidence is insufficient to sustain his convictions; and (2) the trial court erred when it found the Defendant waived review of the issue of whether recent case law on expert witness testimony entitled him to a new trial. After a thorough review of the record and applicable authorities, we affirm the trial court's judgments.

This is a condemnation case in which the Water Authority of Dickson County acquired an easement by eminent domain for the purpose of installing a subsurface water transmission line. The Water Authority's ability to take the land is not in question; this appeal only involves the amount of compensation to which the landowners are entitled. Following a trial without a jury, the court awarded $12,526.56 for the taking of the permanent easement and incidental damages. The Water Authority appeals. Finding error, we vacate the judgment of the court and remand for further proceedings.

The trial court granted the wife a divorce after a marriage of almost twenty years, divided the marital property, and awarded the wife temporary alimony. The husband argues on appeal that the court erred in the property division by impermissibly taking his fault into consideration and by dividing his military retirement between the parties without considering the effect of their long separation on the equities of that division. The husband also argues that the court impermissibly awarded the wife alimony in solido out of his future earnings rather than out of his separate property. After thoroughly examining the record, we have found no evidence that the trial court based its property division on the husband’s fault, and we do not find that it abused its discretion in dividing the military retirement as it did. We also find no indication that the trial court intended its monthly alimony award to be considered alimony in solido. We accordingly affirm the trial court, but modify its decree to specify that the award of monthly alimony is in the form of transitional alimony and conversely that the award of attorney fees is alimony in solido .

This appeal involves a motion to set aside a marital dissolution agreement. After a long marriage, the parties filed cross-petitions for divorce. After mediation, they entered into a marital dissolution agreement settling division of the considerable martial estate. The parties presented the MDA to the trial court, and it was approved and incorporated into the final decree of divorce. Several weeks later, the husband filed this pro se petition to have the MDA set aside, claiming that, at the time it was signed, he was not mentally competent to enter in to such an agreement. The husband's motion was denied, and the wife was awarded attorney fees pursuant to the terms of the MDA. The husband now appeals. We affirm. We hold that the evidence supports the factual finding below that the husband was mentally capable of understanding the consequences of the MDA, and we find no abuse of its discretion in the trial court's denial of the husband's motion to set it aside. We also affirm the award of attorney fees to the wife, and award attorney fees for this appeal.

This is a dispute between two insurance companies, each of which provided liability insurance for a Captain D’s restaurant in Mississippi. The defendant, Federal Insurance Company, provided the primary coverage for Captain D’s with policy limits of $1,000,000. The plaintiff, Great American Insurance Company of New York, provided excess coverage for the benefit of Captain D’s. When an action was filed against the insured in Mississippi for serious and permanent injuries sustained by a 15 year-old minor at a Captain D’s, Federal provided the defense for Captain D’s. The jury returned a verdict of $20.8 million against Captain D’s. The next day, Federal sent a letter to its insured, Captain D’s, and to the excess carrier, Great American, offering to pay its policy limits of $1,000,000 toward the judgment; however, Federal’s “offer to pay” was not communicated to Foradori, the plaintiff in the Mississippi action. Federal appealed the $20.8 million Mississippi judgment on behalf of Captain D’s, but the judgment was affirmed. Post-judgment interest of $2,269,169 accrued during the appeal. When the judgment became final, Federal paid its policy limits of $1,000,000, but no interest. Great American paid the balance of the judgment plus all of the post-judgment interest.

The trial court granted the wife a divorce after a marriage of almost twenty years, divided the marital property, and awarded the wife temporary alimony. The husband argues on appeal that the court erred in the property division by impermissibly taking his fault into consideration and by dividing his military retirement between the parties without considering the effect of their long separation on the equities of that division. The husband also argues that the court impermissibly awarded the wife alimony in solido out of his future earnings rather than out of his separate property. After thoroughly examining the record, we have found no evidence that the trial court based its property division on the husband's fault, and we do not find that it abused its discretion in dividing the military retirement as it did. We also find no indication that the trial court intended its monthly alimony award to be considered alimony in solido. We accordingly affirm the trial court, but modify its decree to specify that the award of monthly alimony is in the form of transitional alimony and conversely that the award of attorney fees is alimony in solido.

This is a condemnation case in which the Water Authority of Dickson County acquired an easement by eminent domain for the purpose of installing a subsurface water transmission line. The Water Authority's ability to take the land is not in question; this appeal only involves the amount of compensation to which the landowners are entitled. Following a trial without a jury, the court awarded $6,300.00 for the taking of the permanent easement and incidental damages. The Water Authority appeals. Finding error, we vacate the judgment of the court and remand for further proceedings.

The Defendant-Appellant, Joseph S. Rittenberry, pled nolo contendere in Sumner County to three counts of attempted aggravated sexual battery, a Class C felony. The trial court sentenced Rittenberry to six years in the Tennessee Department of Correction for each conviction, to be served concurrently. On appeal, Rittenberry claims the trial court erred in denying alternative sentencing. Following our review, we affirm the judgments of the trial court.

The juvenile court granted emergency custody of a four-year-old girl to her paternal aunt and uncle and subsequently determined that the child was dependent and neglected. More than two years after obtaining custody, the aunt and uncle petitioned the trial court to terminate the parental rights of the child's mother and father. The court conducted a four-day hearing before terminating their parental rights on the grounds of abandonment and persistence of conditions. Only the mother appealed. We affirm the termination of her rights on the ground of persistence of conditions.

The matter at issue is a sliver of land between an old established fence and the centerline of a rural road. The plaintiff and the defendants each contend they own the disputed property.The plaintiff claims his property, which lies west and southwest of the defendants' property, extends beyond an old established fence in a northeasterly fashion to the center line of Old Lincoln Road. The defendants, however, claim their property extends across the road to the old established fence which, the defendants insist, is also where the plaintiff's property ends. Following a bench trial, the trial court found that the "old established fence" referenced in the plaintiff's deed is the boundary line, as the defendants claim, not the centerline of Old Lincoln Road, as the plaintiff claims, and therefore, the defendants own the disputed property. We have concluded that the trial court correctly determined the plaintiff's property stopped at the "old established fence." Thus, we affirm that decision. We, however, have determined that the trial court erred by awarding the disputed property to the defendants. This is because the defendants' deed clearly states that their property stops at the center line of Old Lincoln Road and nothing in the deed suggests their property extends beyond that point. Accordingly, we reverse the trial court's finding that the defendants' property extends beyond the centerline of Old Lincoln Road. As a consequence, neither party has established that they own the disputed property. Furthermore, we have determined that others who are not parties to this action may have a claim to the disputed property; thus, ownership of the disputed property will need to be determined in a subsequent action in which others who are possibly indispensable parties are joined.

The Defendant-Appellant, Christopher Jones, appeals the revocation of his probation by the Circuit Court of Madison County. Jones pled guilty to three Class A misdemeanors: possession of cocaine, possession of marijuana, and possession of drug paraphernalia . For each conviction, he was sentenced to eleven months and twenty-nine days in the county jail. He was also fined a total of $1,150. The trial court ordered the sentences for possession of cocaine and possession of marijuana to be served concurrently, with the sentence for possession of drug paraphernalia to be served consecutively. All three sentences were suspended, and Jones was placed on probation. On appeal, he claims the trial court erred by revoking his probation and restoring his original sentences. Upon review, we affirm the judgment of the trial court.

This appeal involves subject matter jurisdiction with respect to billboard permits. The defendant’s application for a State permit to erect a billboard in Shelby County was denied, so he filed an administrative appeal from this decision. Meanwhile, the defendant proceeded to erect the billboard in Shelby County without a State permit. The State filed this petition in Shelby County to enjoin the defendant from erecting the billboard pending resolution of the administrative appeal. The defendant argued that the State was not entitled to injunctive relief because he had unfairly been denied a State permit. The defendant also filed a counterclaim based on alleged improper conduct by State officials, seeking to enjoin the State from improperly enforcing its regulations against him in all cases in which he had been denied a State billboard permit. The trial court entered an order enjoining the State from improper enforcement of the billboard regulations. Later, after lengthy evidentiary hearings, the trial court ordered the State to grant the defendant State permits for various billboard sites and assumed continuing jurisdiction over certain administrative proceedings in which the defendant had appealed the denial of billboard permits. The State now appeals. We find that, by statute, the trial court in Davidson County has exclusive subject matter jurisdiction over the matters asserted by the defendant in response to the petition for injunctive relief and in his counterclaims. Therefore, we reverse the decision of the trial court based on lack of subject matter jurisdiction, dismiss the counterclaim in its entirety, and remand.

This appeal involves subject matter jurisdiction with respect to billboard permits. The defendant's application for a State permit to erect a billboard in Shelby County was denied, so he filed an administrative appeal from this decision. Meanwhile, the defendant proceeded to erect the billboard in Shelby County without a State permit. The State filed this petition in Shelby County to enjoin the defendant from erecting the billboard pending resolution of the administrative appeal. The defendant argued that the State was not entitled to injunctive relief because he had unfairly been denied a State permit. The defendant also filed a counterclaim based on alleged improper conduct by State officials, seeking to enjoin the State from improperly enforcing its regulations against him in all cases in which he had been denied a State billboard permit. The trial court entered an order enjoining the State from improper enforcement of the billboard regulations. Later, after lengthy evidentiary hearings, the trial court ordered the State to grant the defendant State permits for various billboard sites and assumed continuing jurisdiction over certain administrative proceedings in which the defendant had appealed the denial of billboard permits. The State now appeals. We find that, by statute, the trial court in Davidson County has exclusive subject matter jurisdiction over the matters asserted by the defendant in response to the petition for injunctive relief and in his counterclaims. Therefore, we reverse the decision of the trial court based on lack of subject matter jurisdiction, dismiss the counterclaim in its entirety, and remand.

The petitioner, Jeffrey A. Waggoner, appeals the denial of error coram nobis relief by the trial court. He was convicted of first degree murder on February 2, 1984, and sentenced to life imprisonment. He filed a petition for writ of error coram nobis relief, alleging that a witness who had testified against him at trial had recanted his testimony. After careful review, we affirm the judgment from the trial court.

The Warren County Grand Jury indicted Appellant, Donald Ray Blevins, for two counts of delivery of cocaine, a Schedule II controlled substance, in an amount of less than 0.5 grams, and one count of delivery of cocaine, a Schedule II controlled substance, in an amount of 0.5 grams or more. These offenses were based upon three drug transactions involving a confidential informant's telephone calls to Appellant and further dealings with two other individuals. Following a jury trial, Appellant was convicted of facilitation of delivery of cocaine in an amount less than 0.5 grams, delivery of cocaine in an amount less than 0.5 grams, and delivery of cocaine in an amount of 0.5 grams or more. The trial court sentenced Appellant as a Range I, standard offender and imposed an effective nine-year sentence to be served at thirty percent. Appellant appealed his convictions arguing that the evidence was insufficient to support his convictions and that the trial court erred in denying his motion to sever offenses. We have reviewed the record on appeal. We conclude that the evidence was sufficient to support Appellant's convictions of the delivery offenses based upon the theory of criminal responsibility. In addition, the evidence was sufficient to support his conviction for facilitation of delivery. We also conclude that the trial court did not abuse its discretion in determining that the telephone calls were part of a common scheme or plan and for that reason the denial of Appellant's motion to sever offenses was proper. Therefore, we affirm the judgments of the lower court.

Plaintiff, a non-resident, brought this action against defendant real estate agent for releasing funds from a sale to defendant Hays, who had been employed by the plaintiff to sell items of personalty for plaintiff and improve plaintiff's real estate properties for sale. Further, that Hays improperly filed a lien against plaintiff's property, resulting in damages to plaintiff. The Trial Court granted the real estate agent summary judgment and, after a trial, entered a monetary judgment against Hays in favor of plaintiff. Plaintiff appeals the issue of summary judgment in favor of the real estate agent, and Hays appeals the monetary judgment entered against him in favor of plaintiff. On appeal, we affirm the Judgment of the Trial Court.