APPELLATE COURT OPINIONS

Father appeals the trial court’s termination of his parental rights to his three-year old daughter. Based upon the record that included persistent violent behavior directed at the child’s mother, we conclude the trial court did not err in terminating Father’s rights.

Dr. Brian E. Harris (“Doctor”), the insured, brought this action for breach of contract and on the basis of various torts. He alleged that UnumProvident Corporation (“Insurance Company” or “the company”) had wrongfully canceled his disability policy and retroactively rejected his disability claim. The trial court granted Insurance Company summary judgment. The court found that Doctor had filed his suit outside the applicable limitations periods. Doctor appeals, claiming that his suit
was timely filed. We affirm.

A jury awarded the plaintiff homeowners judgment against their residential building contractor for damages sustained by the plaintiffs when the slope upon which their home was constructed failed. The defendant contractor appeals, arguing that the trial court abused its discretion by allowing an expert witness to testify outside his area of expertise and by allowing another witness to testify as an expert when the plaintiff had failed to identify him as a witness before trial. Upon careful review of the record, it is our determination that the trial court did not abuse its discretion in the admission of the testimony of these witnesses. Accordingly, we affirm the judgment of the trial court.

The administrators of the estate of a woman who died after being transported by ambulance from a nursing home to a hospital filed a wrongful death suit which named the nursing home and the ambulance service as defendants. The nursing home responded with a motion to compel arbitration, citing a provision in the admissions agreement which the decedent had signed, requiring both parties to submit any disputes to arbitration and to waive their rights to jury trial. The trial court found the arbitration clause to be unconscionable and denied the motion. The nursing home then filed a direct appeal to this court pursuant to Tenn. Code Ann. § 29-5-319. We affirm.

This application for an extraordinary appeal concerns whether a trial court should consider matters outside the pleadings in ruling on a motion to dismiss for lack of personal jurisdiction and improper venue pursuant to Tenn. R. Civ. P. 12.02(2) and (3). The trial court declined to consider matters outside the pleadings and denied the defendants’ motion to dismiss. Because the trial court should have considered the affidavits and other documents submitted by the parties in support of and in opposition to the motion to dismiss, we grant the application, vacate the trial court’s order denying the motion to dismiss, and remand the case to the trial court for further proceedings on the motion.

Defendant was convicted of aggravated rape. The Court of Criminal Appeals affirmed his conviction but remanded for re-sentencing. Thereafter, we granted permission to appeal to consider the following issues: 1) whether the State failed to establish a proper chain of custody for the admission into evidence of pantyhose the victim was allegedly wearing at the time of the rape; 2) whether the evidence is sufficient to support the conviction; 3) whether the trial court erred in denying the defense motion to suppress the identification of his DNA profile from a DNA database; 4) whether admission of the victim’s statements into evidence through third parties violated Defendant’s constitutional right of confrontation; 5) whether the friendship between the trial court and one of the prosecuting attorneys created a serious appearance of impropriety and biased the trial court against Defendant; and 6) whether the Court of Criminal Appeals erred by remanding this case for re-sentencing. After considering these issues, we conclude that the State failed to establish a proper chain of custody for the admission into evidence of the pantyhose and that the victim’s statements describing the assault to the police officers and her statements to the sexual assault nurse examiner were testimonial and admitted in violation of Defendant’s right of  confrontation. We further hold that the trial court properly denied Defendant’s motion to suppress and Defendant’s motion for recusal. Because the error in admitting the pantyhose into evidence was not harmless, however, we reverse Defendant’s conviction for aggravated rape and remand for a new trial.

The State of Tennessee appeals the decision of the Obion County Circuit Court suppressing evidence obtained as a result of a police search of the residence of the Appellee, Charlotte Yvonne Turner.  Turner, a parolee, was convicted of drug related offenses in Kentucky, with her parole being subsequently transferred to Tennessee. Turner’s vehicle was stopped by Union City police officers, who were familiar with her status as a parolee. After the stop, Turner and the vehicle were searched for drugs based upon one officer’s suspicion that she was involved in drug activity. After a fruitless search for contraband of both her person and vehicle, the officer demanded that Turner allow a search of her home, pursuant to a condition of her parole. No drugs were found during the search of her residence; however, Turner directed officers to a handgun, which was located in a bedroom.  The weapon was seized, and Turner was subsequently indicted for unlawful possession of a weapon by a convicted felon. Turner filed a motion to suppress the evidence, which the trial court granted.  On appeal, the State argues that the search of the residence was lawful under the recent holding of the United States Supreme Court decision of Samson v. California, 547 U.S. 843, 126 S. Ct. 2193 (2006). After review, we conclude that the police search of Turner’s residence was unreasonable and affirm the ruling of the trial court.

Defendant pled guilty to simple possession of cocaine. Defendant properly preserved the following certified question of law for review, “Whether the informant’s credibility was sufficiently set forth to establish probable cause in the affidavit which provided support for issuance of the search warrant in this case.” After a thorough review of the record, the judgment of the circuit court is reversed and the indictment against Defendant is dismissed.

The defendant, Torrie Perkins, appeals from convictions of first degree murder and attempted first degree murder rendered by a Haywood County Circuit Court jury, for which he was sentenced to concurrent terms of life without parole and twenty-five years. In his appeal, he challenges the sufficiency of the evidence. We affirm the judgments of the trial court but remand the case for correction of the judgment for the first degree murder conviction.

The defendant, Shakir Adams, was convicted of premeditated first degree murder and sentenced to life with the possibility of parole. The defendant appeals his conviction and argues: (1) that there was insufficient evidence to sustain his conviction; (2) that he was prejudiced by the trial court’s refusal to allow the defendant to administer a jury questionnaire; (3) that he was prejudiced by the trial court’s denial of his motion for continuance; (4) that he was prejudiced by the court’s comments both pre-trial and during trial; (5) that he was prejudiced by the admission of evidence that the defendant was a member of a gang; and (6) that he was prejudiced by the erroneous exclusion of evidence. Following our review of the parties’ briefs, the record, and the applicable law, we affirm the judgment of the trial court.

This appeal arises from a declaratory judgment action in which Plaintiff sought a declaration of his rights under Tennessee Code Annotated § 8-24-102 as amended in 2001. Plaintiff asserted that the 2001 amendments to the general statute repealed by implication a 2000 private act establishing the compensation of the Gibson County Juvenile Court Clerk. The trial court determined the amendments to the statute superseded the private act, and that the salary for the juvenile court clerk should be established according to Tennessee Code Annotated § 8-24-102 as amended in 2001. We reverse.

I concur in the result reached by the majority, particularly the excellent analysis pertaining to the confrontation clauses of the federal and state constitutions; however, I would have affirmed that portion of the opinion by the Court of Criminal Appeals holding that the article of clothing containing semen identified as that of the defendant was properly admitted as evidence, despite any weakness in the chain of custody. In my view, the majority places an inordinate degree of emphasis on the initial link in the chain and falls short of affording the trial judge adequate deference under our limited scope of review. Because, however, other evidence offered by the State violated constitutional principles, and the errors were not harmless beyond a reasonable doubt, I agree that a new trial is warranted.

Appellant, Charles W. McCaleb, was indicted by the Hickman County Grand Jury for aggravated assault and assault. After a jury trial, Appellant was acquitted of aggravated assault in Count One and convicted of assault by offensive touching in Count Two. As a result, the trial court sentenced Appellant to six months in jail. The trial court ordered Appellant to serve forty-five days in incarceration and the remainder of the sentence was suspended and Appellant was placed on probation. On appeal, Appellant argues that the evidence was insufficient and that his sentence is excessive. We affirm the judgment of the trial court because the evidence is sufficient to support the conviction for simple assault by offensive touching and the trial court properly sentenced Appellant.

The Petitioner, Raymond David Wright, pled guilty to second degree murder in 1993 in exchange for a fifty year sentence as a Range III offender. He filed a petition for habeas corpus relief claiming his sentence was illegal because, had he been tried and convicted, he would be considered only a Range I offender. Thus, he claims his fifty-year sentence is illegal. The Petitioner further asserts second degree murder is not a lesser included offense of first degree felony murder, and, therefore, the trial court had no jurisdiction to sentence him. The habeas court dismissed the petition without a hearing. After a thorough review of the record and applicable law, we affirm the judgment of the habeas court.

The Defendant, Andre Dotson, was convicted of two counts of aggravated robbery and two counts of robbery. On direct appeal of right, the Court of Criminal Appeals modified one robbery conviction to theft based upon insufficient evidence of the element of fear on the part of a victim, but otherwise affirmed. We granted permission to appeal in order to consider several issues, including those related to the consolidation of the four indictments in a single trial. We hold that (1) the consolidation of the four charges constituted reversible error; (2) while the trial court did not abuse its discretion by severing the two indictments against a co-defendant, that would have been unnecessary had the Defendant been afforded separate trials; (3) the co-defendant’s statements to police did not fall under the “against interest” exception to the hearsay rule and were properly excluded as evidence; and (4) the evidence at trial was sufficient to establish fear on the part of one of the victims, an essential element for the offense of robbery. Because the trial court erroneously refused to order separate trials on each of the four indictments and the error cannot be classified as harmless, the judgment of the Court of Criminal Appeals is reversed and the Defendant is granted new trials on each indictment.

The petitioner, Julius Jones, was convicted in 2002 of facilitation of felony murder, a Class B felony, and sentenced to twenty-three years in the Department of Correction. Following an unsuccessful direct appeal to this court, he filed a petition for post-conviction relief alleging that Tennessee’s 1989 Criminal Sentencing Reform Act was unconstitutional and that his appellate counsel rendered ineffective assistance in violation of his federal and state constitutional rights. The post-conviction court denied the petition, holding that the petitioner failed to prove his factual allegations by clear and convincing evidence. After our review, we affirm the judgment of the post-conviction court.

The petitioner, Jeremy Crosby, appeals the Davidson County Criminal Court’s order dismissing his pro se petition for post-conviction relief without a hearing. The state contends that the trial court properly dismissed most of the petitioner’s claims but admits that the post-conviction court should have appointed counsel to address the petitioner’s claim of ineffective assistance of appellate counsel. After reviewing the record, we affirm the majority of the post-conviction court’s order but remand the case to the post-conviction court for the appointment of counsel and additional proceedings regarding the petitioner’s claim of ineffective assistance of appellate counsel.

Plaintiff, while excavating, struck a gas line which resulted in an explosion and fire, seriously injuring plaintiff. Plaintiffs brought this action against several defendants and the case went to trial against the City of Lebanon and Bush Construction Company, Inc. A jury returned a verdict for the plaintiffs and allocated percentages of fault as to both defendants and the plaintiff. The Trial Court entered Judgment in favor of the plaintiffs and defendants appealed. We reverse the Trial Court Judgment and remand for a new trial on the grounds that a part of the charge to the jury was erroneous.

The parents of a young man who committed suicide after being discharged from a psychiatric hospital sued the hospital and the treating psychiatrist for wrongful death. The trial court granted the defendants’ motions for summary judgment on the basis that the decedent’s act of suicide was an intervening, superseding cause. We reverse and remand for further proceedings.

The Petitioner, Troy Lee Weston, appeals the lower court's denial of his petition for habeas corpus relief. The State has filed a motion requesting that this Court affirm the trial court pursuant to Rule 20, Rules of the Court of Criminal Appeals. The Petitioner has failed to comply with the procedural prerequisites for seeking habeas corpus relief. Accordingly, we affirm the trial court's dismissal.

Two children of the late Bertie M. Taylor filed this action against two of their siblings, attorneys-in-fact for Ms. Taylor, to set aside a quitclaim deed conveying land of their mother executed through the use of a durable power of attorney. Plaintiffs alleged that the power of attorney was invalid due to Bertie Taylor’s lack of mental capacity; that the quitclaim deed was invalid because it contained the signature of only one of the attorneys-in-fact; and that the Defendants breached their confidential relationship with Ms. Taylor by engaging in self-dealing and/or undue influence. The trial court granted summary judgment in favor of Defendant Hoyt on the issues of Ms. Taylor’s mental capacity and the required number of signatures on the quitclaim deed; and granted summary judgment in favor of Plaintiffs on the issues of Defendants’ violation of their duties as attorneys-in-fact, violation of the confidential relationship and Defendant Jack Taylor’s undue influence of Ms. Taylor. The Court declared the quitclaim deed void and vested each Plaintiff with a one-fifth interest in the property. We affirm the trial court’s grant of summary judgment on the issues of Ms. Taylor’s mental capacity, Defendants’ violation of their duties as attorneys-in-fact and violation of the confidential relationship; we vacate the trial court’s grant of summary judgment on the issue of Defendant Jack Taylor’s undue influence; we reverse the trial court’s grant of summary judgment on the issue of the required number of signatures on the deed; and we affirm the relief granted Plaintiffs by the trial court.

Appellant, Adrian K. Nelson, was indicted by a Warren County Grand Jury for possession of .5 grams or more of cocaine with the intent to sell, evading arrest, felony reckless endangerment, leaving the scene of an accident, resisting arrest and driving on a suspended license, second offense. After a jury trial, Appellant was convicted of all of the offenses and sentenced to an effective sentence of twenty-two years. The trial court denied a motion for new trial. Appellant seeks review of the following issues on appeal: (1) whether the trial court erred in denying the motion for new trial; (2) whether the trial court properly denied the motion to suppress; (3) whether the evidence was sufficient to support Appellant’s convictions for possession of cocaine with intent to sell, evading arrest and reckless endangerment; (4) whether the trial court 1 erred by failing to instruct the jury with the lesser included offense of misdemeanor reckless endangerment; (5) whether the trial court erred in failing to instruct the jury on the inference of casual exchange” as set forth in Tennessee Code Annotated section 39-17-419; and (6) whether the sentence is excessive. Because we determine that the trial court erred by failing to instruct the jury with the lesser included offense of misdemeanor reckless endangerment, we reverse Appellant’s conviction for felony reckless endangerment and remand the matter to the trial court for further proceedings. In all other respects, the judgment of the trial court is affirmed.

The Defendant, Reneshia Kioto Parker, pled guilty to forgery involving $1000 or more and theft of property valued at $60,000 or more. The trial court sentenced the Defendant to an effective sentence of ten years in prison. On appeal, the Defendant claims the trial court abused its discretion when it sentenced her. After a thorough review of the record and the applicable law, we dismiss this appeal because the Defendant failed to file a timely notice of appeal.

This workers’ compensation appeal has been referred to the Special Workers’ Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated section 50-6-225(e)(3) for a hearing and a report of findings of fact and conclusions of law. The Employee developed lateral epicondylitis as a result of his work activities, and the Employer provided medical treatment for the injury. The Employee’s symptoms were not relieved, and he sought and received a second opinion through his Employer. Both authorized physicians concluded that the Employee had no permanent impairment. The Employee sought an evaluation from an unauthorized physician, who diagnosed carpal tunnel syndrome in addition to lateral epicondylitis. That physician performed surgery and assigned permanent impairment. The Employee sought permanent disability benefits, and the Employer denied liability. The trial court awarded 30% permanent partial disability to the right arm. The Employer has appealed arguing that the evidence preponderates against the trial court’s findings. We affirm the judgment.