APPELLATE COURT OPINIONS

Mother of four children appeals the termination of her parental rights to two of those children on the ground that she failed to protect them from severe child abuse. Finding the evidence of record to clearly and convincingly support the ground for termination and that termination was in the children's best interest, we affirm the judgment.

Appellant, Kathy M. Pennington, was indicted by the Lawrence County Grand Jury for one count of possession of oxycodone, a Schedule II controlled substance. After the trial court denied appellant's motion to suppress, appellant pled guilty to the charge. As part of her guilty plea, appellant reserved a certified question for appeal arguing that the trial court erred in denying the motion to suppress. After a thorough review of the record, we conclude that the evidence does not preponderate against the factual findings of the trial court that appellant consented to the search. Therefore, we affirm the decision of the trial court.

The Defendant, Michael D. Willis, appeals the Blount County Circuit Court's order revoking his probation for promotion of methamphetamine manufacture, a Class D felony, and ordering him to serve his three-year sentence in the Department of Correction. We hold that the trial court did not abuse its discretion, and we affirm the judgment.

Before November 4, 1986, members of the Chattanooga Police and Fire Departments were allowed to buy back retirement credit for time served while employed in other departments within the City of Chattanooga. On November 4, 1986, a city-wide referendum was passed which established a cut-off date of June 1, 1987, in which to buy back these retirement credits. Almost nineteen (19) years later, this lawsuit was brought by fifteen (15) police officers ("Plaintiffs") against the City of Chattanooga (the "City") and the Chattanooga Fire and Police Pension Board (the "Pension Board"). Plaintiffs claimed, among other things, that the 1986 referendum unconstitutionally deprived them of a property right. Plaintiffs sought a declaration that they be allowed to buy back retirement credits for time served in other City departments. The Trial Court concluded that the statutes of limitation had run on all of the claims, with the exception of some of the plaintiffs' equal protection claim. The Trial Court then concluded that Defendants were entitled to summary judgment as a matter of law as to the one timely claim. Plaintiffs appeal, and we affirm.

A Greene County Criminal Court jury convicted the defendant, Terri K. Teaster, of vehicular assault, and the trial court imposed a sentence of four years' incarceration. In this appeal, the defendant contends that the evidence was insufficient to support her conviction, that the State improperly remarked on the defendant's right not to testify, and that the four-year, fully-incarcerative sentence is excessive. Discerning no error, we affirm the judgment of the trial court.

This appeal involves an intoxicated driver who was stopped after a law enforcement officer saw what he believed to be a broken taillight on the driver's automobile. In his prosecution for driving under the influence in the Circuit Court for Carroll County, the driver asserted that the taillight did not provide the officer with reasonable suspicion to stop his automobile. After the trial court denied his motion, the driver pleaded guilty to driving under the influence but reserved the question of the legality of the traffic stop in accordance with Tenn. R. Crim. P. 37(b)(2). The Court of Criminal Appeals reversed the conviction and dismissed the indictment after finding that the officer lacked reasonable suspicion to make the traffic stop. State v. Brotherton, No. W2007-02016-CCA-R3-CD, 2009 WL 1097446 (Tenn. Crim. App. Apr. 23, 2009). We granted the State's application for permission to appeal to address the application of the reasonable suspicion standard in circumstances involving apparently broken taillights. Based on the undisputed facts, we conclude that the trial court's determination that the trooper had reasonable suspicion to initiate a traffic stop was correct.

In August 1990, a Shelby County jury convicted the petitioner of one count of robbery by use of a deadly weapon and two counts of assault with intent to commit murder in the first degree, all Class A felonies. The trial court sentenced the petitioner as a Range III persistent offender to an effective sentence of 150 years in the Tennessee Department of Correction. This court affirmed his convictions and sentences by memorandum opinion pursuant to Rule 20 of the Rules of the Tennessee Court of Criminal Appeals. The petitioner now appeals the post-conviction court’s denial of relief, arguing that he received ineffective assistance of counsel at trial and on appeal and that his sentence violated the prohibition against ex post facto laws. Following our review, we affirm the judgment of the post-conviction court.

Petitioner, Jeffery Yates, appeals the Lake County Circuit Court's dismissal of his petition for writ of habeas corpus. He contends that his 1994 convictions should have been served consecutively to his 1993 convictions because he was on bail when he committed some of the offenses. Therefore, he argues that his judgments of conviction are void. After a thorough review, we affirm the judgment of the trial court.

A Shelby County jury convicted the defendant, Gerald McEwen, of one count of first degree murder and one count of criminal attempt to commit first degree murder, a Class A felony. The trial court sentenced him as a Range I violent offender to life with the possibility of parole for the murder conviction and as a Range I standard offender to fifteen years for the attempted murder conviction. The court ordered him to serve the sentences concurrently in the Tennessee Department of Correction. On appeal, the defendant argues that (1) the trial court violated his right to due process by denying his counsel the opportunity to rehabilitate a prospective juror and by reprimanding the  prospective juror in front of the jury venire; (2) the trial court erred by denying his Batson challenge; (3) the trial court erred by admitting evidence in violation of Tennessee Rule of Criminal Procedure 16; and (4) the evidence was insufficient to support his convictions. Following our review, we affirm the judgments of the trial court.

This is a divorce case involving the classification and distribution of marital property. The parties purchased three contiguous lots near the husband's parents in Kentucky, intending to move there after the husband's retirement. The husband's parents financed the purchase of the property. Several years before his anticipated retirement, the husband began building a house on one of the lots. After some time, the wife told the husband that she did not want to move to Kentucky. The parties then transferred title on all three lots to the husband's parents in satisfaction of their debt. Subsequently, the husband completed the construction of the house, and his parents sold the house at a profit. The husband's parents then sent the husband a check in the amount of the proceeds from the sale of the house minus the parties' debt to the parents. The husband's parents retained title in the other two lots. Soon after that, the parties filed cross-petitions for divorce. In the divorce decree, the trial court held that the check paid to the husband constituted marital property, and that the other two lots held by the husband's parents were subject to a resulting trust in favor of the husband and the wife. The trial court also awarded the wife rehabilitative alimony and a percentage of the retirement benefits received by the husband after the divorce petitions were filed. The husband now appeals. We reverse the trial court's imposition of a resulting trust over the two lots held by the husband's parents, and affirm the remainder of the trial court's decision.

The Defendant, Wilson Palacio, challenges the sentencing decision of the Bedford County Circuit Court. Following his guilty pleas to one count of aggravated burglary and three counts of aggravated robbery, the trial court imposed an effective twenty-five-year sentence to be served in the Department of Correction. On appeal, the defendant asserts that his sentence is excessive and that the trial court erred in ordering consecutive sentences. After a review of the record, we affirm the judgments of the trial court.

The matters at issue pertain to the rights and responsibilities of the parties under the underinsured motorist provisions of Plaintiff's automobile insurance. Plaintiff, who was involved in a vehicular accident with another motorist, commenced this personal injury action to recover an amount "under $25,000." The only named defendant is the tortfeasor, however, State Farm is an unnamed party. This is due to the fact that plaintiff served timely and proper notice on State Farm of the commencement of this action and that she was asserting an underinsured coverage claim pursuant to Tenn. Code Ann. _ 56-7-1206. Plaintiff subsequently entered into a settlement agreement with the tortfeasor for the tortfeasor's policy limits of $25,000, at which time she properly served notice on State Farm of the proposed settlement and her willingness to enter into binding arbitration with State Farm to settle her claim for underinsured motorist benefits. Thereafter, State Farm filed a motion to dismiss the underinsured claim against it claiming plaintiff was made whole when she agreed to a settlement with the tortfeasor in an amount in excess of her ad damnum and therefore there was no claim to arbitrate. The court granted the motion to dismiss and plaintiff appealed. We have determined the trial court did not err in granting State Farm's motion to dismiss the claim against it because plaintiff sought to recover a judgment in an amount under $25,000 from the tortfeasor and/or State Farm, and plaintiff settled her claim against the tortfeasor for an amount in excess of the ad damnum. Accordingly, we affirm the dismissal of State Farm.

In a condemnation proceeding, landowners objected to the admission of expert testimony that was based in part on an appraisal of the land 14 months prior to the condemnation. They also objected to the admission of an affiliate broker's opinion of value. The trial court allowed the testimony, the jury returned a verdict, and a motion for new trial filed by landowners was denied. On appeal, landowners assert that both experts' opinions of value were inadmissible, that the trial court failed to properly review the motion for new trial, and that the jury's verdict was not supported by any material evidence. Finding no error, we affirm.

After a joint jury trial, the Defendant, Katayoun Mohammadi Jaffarian, was convicted of theft of property valued at $500 or less, and the Defendant, Nader Karshenas, was convicted of theft of merchandise valued at $500 or less (collectively "the Defendants"). The defendants were each sentenced to eleven months and twenty-nine days in the Williamson County Jail. The trial court denied the defendants' motion for a new trial. Nonetheless, the defendants thereafter sought to amend their motion for new trial based upon newly discovered evidence. In this direct appeal, the defendants argue that the evidence is insufficient as a matter of law to support their convictions and that the trial court erred by denying their amended motion for new trial. Following our review of the record, we affirm the judgments of the trial court.

Appellant, Roger Stephen Riner, was convicted by a Davidson County Jury of first degree murder, felony murder, and aggravated robbery. The trial court merged the felony murder conviction with the first degree murder conviction. Appellant was sentenced to life for the first degree murder conviction and ten years for the aggravated robbery conviction, to be served consecutively to the life sentence. On appeal, the following issues are presented for our review: (1) whether the trial court erred in denying the motion for judgment of acquittal; (2) whether the trial court erred by allowing certain photographs of the victim's injuries to be admitted as exhibits; (3) whether the trial court erred by allowing the jury to view appellant's multiple tattoos; and (4) whether the trial court improperly ordered consecutive sentencing. After a thorough review of the record, we determine that the evidence was sufficient to support the convictions and that the trial court properly ordered consecutive sentencing. Further, appellant waived the remaining issues for failure to include the motion for new trial and/or transcript of the motion for new trial in the record on appeal and failed to establish plain error by the trial court with respect to these issues. Accordingly, the judgments of the trial court are affirmed.

This appeal concerns the liability of a county. The county filed a motion to dismiss the plaintiff's complaint for failure to state a claim, arguing that the public duty doctrine barred the plaintiff's claim. The trial court granted the motion to dismiss upon concluding that the public duty doctrine applied and that its special duty exception was inapplicable. After examining the complaint in accordance with the liberal standards required at this stage of the proceedings, we find that Plaintiff's allegations sufficiently state a cause of action to withstand the motion to dismiss.

Appellant, Shawn Simmons, appeals from his conviction for first degree murder in Lincoln County. Appellant argues that: (1) the evidence was insufficient to support the conviction; (2) the trial court erred by instructing the jury on flight; and (3) the trial court improperly ruled that the State could use prior convictions to impeach appellant's testimony in violation of Tennessee Rule of Evidence 609. After a thorough review of the record, we determine that the evidence was sufficient to support the conviction. Further, we determine that the trial court properly instructed the jury on flight where the evidence supported such an instruction and that the trial court properly ruled that the State could use appellant's prior convictions for impeachment if he chose to testify. Accordingly, the judgment of the trial court is affirmed.

I concur with the Court’s conclusion that Tenn. Code Ann. § 20-9-304 (2009) permits lawyers to “argue the worth or monetary value of pain and suffering to the jury” in medical malpractice cases. I have prepared this separate opinion to call attention to two related matters.

The issue presented in this interlocutory appeal is whether a plaintiff in a medical malpractice action is prohibited from arguing or suggesting to the jury any monetary amounts for noneconomic damages. We hold that the language of Tennessee Code Annotated section 29-26- 117 (2000) prohibits the plaintiff from disclosing the amount of damages requested in the plaintiff's pleading, but does not preclude the plaintiff from arguing or suggesting monetary amounts for non-economic damages to jurors at trial. The judgment of the trial court is reversed, and this case is remanded for further proceedings.

A Sullivan County jury convicted the defendant, Bryan Keith Good, of attempted aggravated robbery, a Class C felony, criminally negligent homicide, a Class E felony, and unlawful possession of a deadly weapon, a Class E felony. The trial court sentenced him as a Range III, persistent offender to fifteen years for the Class C felony and six years for each of the Class E felonies. The court ordered the defendant to serve the sentences consecutively in the Tennessee Department of Correction, for an effective sentence of twenty-seven years. On appeal, the defendant (1) challenges the sufficiency of the evidence to support his convictions for attempted aggravated robbery and unlawful possession of a deadly weapon; (2) argues that the trial court erred in denying his motion for judgment of acquittal; and (3) contends that the trial court erred in imposing consecutive sentences and in denying alternative sentencing. Following our review, we conclude that the convictions for both attempted aggravated robbery and unlawful possession of a deadly weapon violate double jeopardy protections. The defendant's convictions for attempted aggravated robbery and unlawful possession of a deadly weapon are hereby merged. The defendant's remaining convictions and sentences are affirmed. We remand solely for the entry of appropriate judgments consistent with this opinion.

In this workers’ compensation action, the employee, Linda Princinsky, sought reconsideration for a compensable injury that she sustained in 2002. Following the injury, she was able to return to work for her pre-injury employer. Her workers’ compensation claim was settled for two and one half times the anatomical impairment in accordance with Tennessee Code Annotated section 50-6- 241(a). In 2005, she sustained another work-related injury, and was unable to return to her job. She entered into a court-approved settlement of that claim based upon 40.5% permanent partial disability to the body as a whole. She then sought reconsideration, pursuant to Tennessee Code Annotated section 50-6-241(a)(2), of the settlement of her 2002 injury. The trial court found that she was permanently and totally disabled as a result of that injury and awarded benefits accordingly. Employer and the Second Injury Fund have appealed.  We affirm the trial court’s finding that Ms. Princinsky was rendered permanently and totally disabled by her 2002 injury, but conclude that the trial court erred in failing to offset from its award 272 weeks of benefits previously paid by the employer for the 2002 and 2005 injuries. We, therefore, modify the award and remand the case to the trial court for the entry of an appropriate judgment consistent with this opinion.

I respectfully dissent from the majority’s conclusion that the defendant’s
conviction of second degree murder should be upheld despite the absence of any proof that the defendant knowingly inflicted the lethal wound. The majority agrees that the evidence did not establish a knowing killing, the elemental and factual foundation for second degree murder. Indeed, the majority agrees that the trial court should not have instructed the jury on second degree murder as a lesser included offense of first degree felony murder. Despite these conclusions, the majority relies upon the mens rea regime for felony murder to impart culpability to the defendant for second degree murder.

The appellant, death-row inmate Billy Ray Irick, challenges the trial court's order of August 20, 2010, finding that he is presently competent to be executed according to the standards enunciated in Panetti v. Quarterman, 551 U.S. 930 (2007), Ford v. Wainwright, 477 U.S. 399 (1986), and Van Tran v. State, 6 S.W.3d 257 (Tenn. 1999). Applying de novo review, we hold that the trial court applied the correct legal standards in adjudicating the question of the appellant's present competence for execution. Additionally, after carefully and thoroughly reviewing the record on appeal, we conclude that the evidence fully supports and does not preponderate against the trial court's factual finding that the appellant is presently competent to be executed. Accordingly, the judgment of the trial court is affirmed.

Counsel for plaintiff in damage suit appeals award of sanctions imposed pursuant to Tenn. R. Civ. P. 11 against her. Finding that the trial court did not abuse its discretion the award is affirmed.

The appellant, Joe Michael Turner, was convicted by a Knox County Criminal Court Jury of two counts of aggravated rape, one count of especially aggravated kidnapping, three counts of aggravated kidnapping, and one count of aggravated assault. The trial court imposed an effective sentence of one hundred years in the Tennessee Department of Correction. On appeal, the appellant challenges the sentences imposed by the trial court. Upon review, we conclude that the trial court should have merged the kidnapping convictions. Therefore, the judgments of conviction for the especially aggravated kidnapping and the aggravated kidnappings are vacated and the case is remanded for entry of a judgment of especially aggravated kidnapping that includes the merged aggravated kidnapping convictions. The judgments of the trial court are affirmed in all other respects.