APPELLATE COURT OPINIONS

This is a termination of parental rights case. In 1999, DCS removed three of the four children living with mother from the mother’s home. They were found to be dependent and neglected, and placed in the custody of DCS. The children were in foster care until October 2002, when they were returned to the mother. By that time, the fourth child had been born. In May 2003, all four children were again removed from the mother’s custody based on reports that the mother had left the children unsupervised, and that the eighteen-month-old was found in the street and was almost hit by a car.  Authorities later discovered that minors had been drinking alcohol in the mother’s home, and that the mother had struck one of the children in the eye and told her to lie about the resulting bruise. The trial court again found the children to be dependent and neglected. The mother and DCS entered into a permanency plan with several requirements for the mother to complete in order to regain custody of the children. Eight months later, DCS filed the instant petition to terminate the mother’s parental rights, alleging, inter alia, that the conditions which led to the removal of the children from the mother’s home persisted. The trial court granted the petition and terminated the mother’s parental rights. The mother now appeals. We affirm, finding ample evidence on the ground of persistent conditions, as well as clear and convincing evidence that termination of the mother’s parental rights was in the children’s best interest.

The defendant, Joshua Schaeffer, was convicted of aggravated robbery. The trial court imposed a Range I sentence of eight years in the Department of Correction. In this appeal as of right, the defendant alleges (1) that the evidence is insufficient; (2) that the trial court provided an incorrect definition of the term "deadly weapon" in its instructions to the jury; (3) that the trial court committed plain error by giving the "result-of-conduct" definition of "knowingly" in its instructions to the jury; (4) that the trial court improperly allowed into evidence a newspaper headline related to the offense; (5) that a detective impermissibly referred to the crime as "robbery" during his testimony; (6) that the prosecutor's closing argument was improper; and (7) that the cumulative effect of the errors deprived him of the right to a fair trial. The judgment of the trial court is affirmed.

The Defendant, Markettus L. Broyld, appeals the judgment of the trial court revoking his probation. Because the notice of appeal was untimely filed, this appeal is dismissed.

The Petitioner, Lakeisha Jones, was convicted of second degree murder, and the trial court sentenced her, as a violent offender, to fifteen years in prison. The Petitioner’s conviction and sentence were affirmed by this Court. Subsequently, the Petitioner filed a pro se petition for post-conviction relief, which was later amended by appointed counsel. After a hearing, the trial court dismissed the petition. On appeal, the Petitioner contends that the trial court erred when it dismissed her petition for post-conviction relief because she received ineffective assistance of counsel at her trial. Finding that there exists no reversible error, we affirm the post-conviction court’s judgment.

The defendant, Timothy Wright, appeals from his Tipton County Circuit Court jury conviction of aggravated assault, which resulted in a four-year sentence to be served through 220 days’ confinement, with the defendant placed in a community corrections program for the balance of the sentence. The defendant’s single issue on appeal is his claim that the trial court erred in permitting the victim/prosecuting witness “to remain in the courtroom and testify last at trial.” Because we discern no reversible error in the proceedings in the circuit court, we affirm the conviction.

In this appeal, we are called upon to review the trial court’s order entering summary judgment in favor of the bank. After one of its customers deposited a counterfeit check into its account at the bank, the bank filed a claim with its insurance company to recover for its loss under a bond.  Specifically, the bank sought coverage under two provisions in the bond. The bank filed its first motion for summary judgment on one of the bond’s provisions. The insurance company responded by agreeing that, for purposes of ruling on the motion for summary judgment, the bank’s customer intended to commit a fraud when he deposited the check. By doing so, the insurance company sought to trigger an exclusion provision in the bond. Thereafter, the bank filed a second motion for summary judgment on the other provision in the bond. In response, the insurance company, in an effort to create a disputed issue of material fact as to this provision, asserted that the customer did not intended to commit fraud when he deposited the check. The trial court granted the bank’s motions for summary judgment. In regards to the bank’s motions for summary judgment, we reverse the trial court’s award of summary judgment to the bank and find that genuine issues of material fact remain to be decided, therefore, summary judgment is inappropriate.

Donna Renee Morgan ("Mother") filed a complaint for divorce from her husband of 11 years, Jeffrie W. Morgan ("Father"). The trial court awarded Mother a divorce and designated her as the primary residential parent of the parties' minor child. In addition, the trial court divided the parties' property and awarded Mother alimony and child support, basing its child support award on an annual salary for Father of $110,000. Father appeals, arguing that he should have been awarded primary residential parent status and contending that the trial court erred in its determination of his annual income. We affirm.

This is a construction case. The plaintiff construction manager agreed to manage the construction of a restaurant for the defendant restaurant owner. Preliminary documents showed that the construction manager agreed to provide its services for a guaranteed maximum price. During construction, there were unanticipated problems that increased costs. After construction was completed, the construction manager sought payments from the restaurant owner over and above the guaranteed maximum price, but the restaurant owner refused to pay more. The construction manager filed this lawsuit against the restaurant owner, claiming that the parties did not enter into an enforceable contract, and that the restaurant owner should pay the construction manager the reasonable value of its services under a theory of quantum meruit. After a bench trial, the trial court held in favor of the restaurant owner, determining that the parties had entered into a binding fixed price contract. The construction manager now appeals. We affirm in part and reverse in part the trial court's determination and remand for further proceedings consistent with this opinion.

This case involves a denial of coverage under a professional liability insurance policy. The gravamen of this case is whether the Appellant/insurance company received proper notice under the policy, of a claim by Appellee/accounting firm. Appellee/accounting firm purchased the Policy through its usual insurance broker, also an Appellee in this appeal. Appellee/accounting firm notified Appellee/insurance broker of its claim, but no written notice was forwarded to Appellant/insurance company. The trial court found, inter alia, that notice to the Appellee/insurance broker constituted notice to the Appellant/insurance company. Consequently, the trial court entered judgment against Appellant/insurance company and dismissed Appellee/accounting firm's cause of action against Appellee/insurance broker. We reverse and remand.

In this appeal, we are asked to determine whether (1) the jury based its awards of damages for lost earning capacity and future medical expenses on speculation; (2) the trial court erred when it denied the defendants' motion in limine to exclude the testimony of the plaintiffs' medical experts; and (3) the trial court erred when it denied an award of prejudgment interest to the plaintiffs. The defendants contend that there was no material evidence to support the jury's awards of lost earning capacity and future medical expenses and that the trial court should have granted their motion in limine because the court was required to exclude the testimony of plaintiffs' medical experts as a sanction for plaintiffs' failure to include those medical experts as experts in the plaintiffs' responses to interrogatories. With regards to prejudgment interest, the plaintiffs contend that the trial court erred when it refused to award prejudgment interest because this type of award is applicable to some awards from personal injury cases. We affirm in part, reverse in part, and remand for further proceedings.

The Appellant, Christopher Perry¹, was convicted by a ShelbyCounty jury of the first degree murder of Stanley Johnson and was sentenced to life imprisonment. On appeal, Perry raises the following issues for our review: (1) whether the evidence was sufficient to support the verdict and (2) whether the trial court erred in denying a motion to suppress in violation of his Fifth and Sixth Amendment rights. After review, we conclude the convicting evidence supports the verdict. Moreover, we affirm the trial court’s order denying Perry’s motion to suppress his statement upon Fifth Amendment grounds. However, we vacate the trial court’s denial of Perry’s motion to suppress upon Sixth Amendment right to counsel protections because no findings were entered by the trial court upon the factual disputes presented. Accordingly, the trial court’s denial of Perry’s Motion to  Suppress is vacated, as is the judgment of conviction, with remand for a suppression hearing consistent with this opinion.

This is a divorce case. Plaintiff Husband appeals the trial court’s award of alimony in futuro to Defendant/Counter-Plaintiff Wife. We affirm.

This appeal involves a dispute between workers who were hired to replace striking workers and the employer as well as the international and local unions representing the striking workers. After a class action purportedly filed on their behalf was dismissed before the class was certified, some of the replacement workers who would have been members of the class filed another class action complaint in the Circuit Court for Davidson County against the employer and the unions. The employer moved to dismiss the complaint based on the statute of limitations and the doctrine of laches. The trial court granted the motion, and the replacement workers appealed. We have determined that the trial court erred by concluding that the replacement workers' claims for breach of contract and interference with contract are time-barred and that the doctrine of laches prevented them from maintaining these claims against the employer and the unions.

The defendant, Paul Wilson, was found guilty by a Shelby County jury of aggravated robbery and sentenced to thirty years at sixty percent as a career offender. On appeal, he argues that the trial court erred by: (1) refusing to accept his guilty plea; and (2) removing him from the courtroom and refusing to grant a mistrial following his outburst. After review, we affirm the judgment of the trial court.

This appeal involves a dispute between a citizen and the Metropolitan Government of Nashville and Davidson County regarding the regulatory oversight of the now defunct Nashville Thermal Transfer plant. The Metropolitan Department of Health decided to reopen the plant’s operating permit and to assess monetary penalties for the plant’s violations of air quality regulations. The plant appealed these decisions to the Metropolitan Board of Health. While the administrative appeal was pending, the plant and the Department of Health settled their dispute. The Board of Health approved the settlement and even reduced the monetary penalties assessed against the plant over the objections of a private citizen who had unsuccessfully sought to intervene in the proceeding. The citizen then filed a petition for a common-law writ of certiorari in the Chancery Court seeking judicial review of the Board of Health’s decision. After the plant was totally destroyed by fire, the trial court dismissed the citizen’s petition on the ground that it was moot. We affirm the dismissal because the citizen lacked standing to file the petition for a common-law writ of certiorari.

An inmate in custody of the Tennessee Department of Correction filed a complaint charging the department with negligently disposing of certain items of personal property. The claim was denied by the Tennessee Claims Commission and the claimant appeals. We affirm.

Following a bench trial, the defendant was convicted of driving under the influence (DUI) per se. See Tenn. Code Ann. § 55-10-401(a)(2). On appeal, the defendant contends: (1) the trial court erred in admitting the blood alcohol test because the test was administered almost three hours after the event of driving thereby rendering the test results unreliable; (2) this court should establish a bright line rule regarding what is a reasonable time between the event of driving and subsequent withdrawal of blood from the accused; (3) the trial court erred in denying his motion for judgment of acquittal; (4) the evidence was insufficient to support his conviction. After review of the record and the parties’ briefs, we affirm the judgment of the trial court.

In 1990, Appellant, Billy Merle Meeks, was convicted, following a jury trial, of aggravated kidnapping, especially aggravated robbery, especially aggravated burglary, and extortion. He received an effective sentence of thirty-nine (39) years. On October 29, 2004, he filed a petition for writ of habeas corpus in the Circuit Court of Davidson County. A "Motion to Dismiss" was filed by Respondent on November 29, 2004, and the trial court entered an order summarily dismissing the petition on March 10, 2005. Appellant has appealed from the trial court's dismissal of the petition. The State has filed a motion for this Court to affirm the dismissal pursuant to Rule 20 of the Rules of the Tennessee Court of Criminal Appeals. Finding merit in the motion, we grant same and affirm the judgment of the trial court.

The petitioner, Joseph B. Thompson, appeals from the circuit court’s summary dismissal of his pro se petition for writ of habeas corpus. Following our review of the parties’ briefs and applicable law, we affirm the circuit court’s judgment.

Following a jury trial, Defendant, Brent Lemane Duncan, was found guilty of aggravated assault, a Class C felony, and domestic assault, a Class A misdemeanor. Defendant received a sentence of three years for the felony and eleven months, twenty-nine days for the misdemeanor, to be served concurrently. The trial court ordered Defendant to serve sixty (60) days periodic confinement, to be served on weekends, and assessed fines against Defendant in the amount of $2,500.00 for each conviction. In his appeal, Defendant challenges the sufficiency of the evidence and argues that the trial court committed reversible error by (1) sustaining the State’s objection to cross examination of the victim regarding her background; (2) sustaining the State’s objection to the testimony of Defendant’s mother regarding the reputation of the victim and the victim’s propensity for truthfulness and veracity; and (3) sustaining the State’s objection to Defendant’s attempt to cross-examine the victim regarding prior inconsistent statements. After a thorough review of the record, we affirm the judgments of the trial court.

This case arises from lease negotiations between Plaintiff W. Robert Vance, Jr. (“Plaintiff”) and Defendants, Robert C. McEwan, Dane Flippen, and Edward Caldwell (“the Defendants”). After the Defendants ultimately decided not to sign a lease with Plaintiff, Plaintiff filed suit against Defendants asserting claims for (1) breach of agreement to enter into a lease agreement; (2) breach of lease agreement; (3) detrimental reliance; (4) fraud and misrepresentation; and (5) negligent misrepresentation. After a trial on the merits, the trial court entered an order disposing of Plaintiff’s contract claims. Plaintiff subsequently filed a “Motion for New Trial or, in the Alternative, to Alter or Amend Judgment and/or Make and/or to Make Additional Findings of Fact Pursuant to Tennessee Rules of Civil Procedure 59.02, 59.04, and 52.02,” which the trial court denied. Plaintiff appealed.  Because we find that the trial court failed to execute a final order disposing with all of Plaintiff’s asserted causes of action, we dismiss this appeal for lack of subject matter jurisdiction under Rule 3(a) of the Tennessee Rules of Appellate Procedure.

The petitioner, Joe Clark Mitchell, filed a petition for writ of habeas corpus alleging that he was being held illegally after the expiration of two consecutive six-year sentences. The trial court dismissed the petition. The petitioner appeals, seeking review of the trial court’s dismissal of the petition. Following a review of the record and applicable authorities we affirm the decision of the trial court.

This court issued an opinion on November 29, 2005 affirming in part and modifying in part the trial court's judgment, the result of which was an award of damages against Almost Family, Inc., f/k/a Caretenders Health Corporation, (Caretenders) in the amount of $658,886.50 in favor of Franklin Capital Associates, L.P. See Franklin Capital Associates, L.P., v. Almost Family, Inc., f/k/a Caretenders Health Corporation, No. M2003-02191-COA-R3-CV, 2005 WL 3193688, (Tenn. Ct. App. Nov. 29, 2005). On December 9, 2005, Franklin filed a timely petition for this court to rehear that portion of the case relating to the application of a block discount to determine Franklin's damages. Having considered the petition for rehearing, we have concluded the trial court did not err by applying a block discount to determine Franklin's damages. Accordingly, we deny the petition for rehearing.

On November 29, 2005, this court issued an opinion finding that the Tennessee Regulatory Authority (Authority) failed to follow the requirements of then-existing law when it declined to convene a contested case proceeding with regard to BellSouth Telecommunications, Inc.’s “Welcoming Reward Program” tariff. Both the Authority and BellSouth have filed timely petitions for rehearing in accordance with Tenn. R. App. P. 39 with regard to portions of that opinion.

The Defendant, Deshawn Turner, was convicted of one count of possession of .5 grams or more of cocaine a schedule II controlled substance, with the intent to manufacture, deliver or sell, and the trial court sentenced him to sixteen years in prison. On appeal, the Defendant contends that the trial court erred when it refused to grant his motion to sever his trial from the trial of his co-defendant and that the evidence is insufficient to sustain his conviction. Finding that there exists no reversible
error, we affirm the judgment of the trial court.