APPELLATE COURT OPINIONS

This case stems from a proceeding in which the parental rights of the parents of a two year old child were terminated due to severe physical abuse of the child and upon the court’s finding that termination would be in the child’s best interest. Mother appeals the holding that termination of her rights was in the best interest and the court’s admission of the testimony of one witness. Finding no error, we affirm the judgment of the trial court.
 

This is an action by homeowners against the insurance company that provided their homeowners’ insurance coverage. At issue is whether the insurer violated Tenn. Code Ann. § 56-7-130(b) (2006) by failing to make available coverage for insurable sinkhole losses and whether the physical damage to the home was caused by “sinkhole activity.”
When the insurer denied coverage, Plaintiffs commenced this action alleging, inter alia, that the insurer breached the policy and acted in bad faith when it refused to pay their claim. Plaintiffs also sought to hold the insurer liable for violating Tenn. Code Ann. § 56 7 130(b) because the insurer did not notify Plaintiffs that sinkhole coverage was an available option. At the time of the occurrence, the statute stated: “Every insurer offering homeowner property insurance in this state shall make available coverage for insurable sinkhole losses on any dwelling, including contents of personal property contained in the dwelling, to the extent provided in the policy to which the sinkhole coverage attaches.” Tenn. Code Ann. § 56-7-130(b) (emphasis added). It is undisputed that the insurer did not notify Plaintiffs that sinkhole coverage was available. The insurer filed a motion for summary judgment contending that Tenn. Code Ann. § 56-7-130 did not require it to notify Plaintiffs that sinkhole coverage was an available option. The insurer also denied the factual assertion that sinkhole activity caused the loss and asserted that it was not liable because, if sinkhole activity caused the damage, the policy contained an exclusion for such an occurrence. Plaintiffs filed a cross-motion for summary judgment, arguing that they were entitled to a judgment that the insurer had violated Tenn. Code Ann. § 56 7 130 and that their insurance policy did not exclude coverage for the damage to their home. The trial court granted Plaintiffs’ motion with respect to Tenn. Code Ann. § 56-7-130, concluding it was undisputed that the insurer “did nothing to make the Plaintiffs aware of the sinkhole endorsement and, therefore, did not meet the requirements of [Tenn. Code Ann. § 56-7-130].” The trial court denied summary judgment on all remaining issues concluding that material facts were disputed concerning the cause of the damage to Plaintiffs’ home. On appeal, we reverse the grant of summary judgment to Plaintiffs based on Tenn. Code Ann. § 56-7-130 and remand with instructions to grant summary judgment to the insurer on that issue because the statutory language, “make available,” does not require insurers to give notice that sinkhole coverage is available. We affirm the trial court’s denial of summary judgment concerning whether the loss at issue is excluded from coverage because, as the trial court correctly found, material facts are in dispute.
 

The Petitioner, James Davis, Jr., appeals as of right from the Shelby County Criminal Court’s summary dismissal of his petition for a writ of habeas corpus. The Petitioner contends that, due to his mental condition at that time, he should be allowed to withdraw his guilty plea because it was not entered voluntarily. The Petitioner also contends that he received ineffective assistance of counsel due to counsel’s failure to request a mental evaluation. Following our review, we affirm the judgment of the habeas corpus court.

Doyle E. Dukes (“Doyle E.”) filed a petition for letters testamentary in the Chancery Court for Union County seeking to have the Last Will and Testament (“the Will”) of Doyle I. Dukes (“Deceased”) admitted to probate. Melbia Cooke (“Melbia”), Mary Lou Anderson (“Mary Lou”), and Ruth Jerline Hickey filed a complaint to contest the Will. The case was transferred from the Chancery Court for Union County to the Circuit Court for Union County (“the Trial Court”). After a bench trial, the Trial Court entered its order on September 19, 2014 finding and holding, inter alia, that a confidential relationship existed between Deceased and Doyle E., that the Will was invalid as the product of undue influence, and that Deceased died intestate. Doyle E. appeals to this Court raising issues regarding whether the Trial Court erred in finding a confidential relationship and whether the Trial Court erred in finding undue influence. We find and hold that the evidence in the record on appeal does not preponderate against the Trial Court’s findings, and we affirm.

Pursuant to Tennessee Supreme Court Rule 51, this workers' compensation 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. After finding that William DeMorato ("Employee") suffered a bilateral carpal tunnel injury in the course and scope of his employment with Trans Carriers, Inc. ("Employer"), the trial court awarded permanent partial disability benefits of 15% to each arm and temporary total disability benefits of $104,948.02. After Employer filed a motion to alter or amend the judgment, however, the trial court concluded that Employee was not entitled to temporary total disability benefits. Employee argues that the trial court erred in finding that he was not entitled to temporary total disability benefits. Employer argues that the trial court erred in finding that Employee suffered a compensable injury. We affirm the trial court's judgment.

Pursuant to Tennessee Supreme Court Rule 51, this workers' compensation 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. Employee, Ralph Alexander, suffered an injury to his right shoulder during the course and scope of his employment with employer, A&A Express, LLC ("A&A"). He was ultimately treated surgically. Mr. Alexander was released from treatment with a permanent partial anatomical impairment but no permanent restrictions. He was initially returned to work at A&A, but later laid off due to lack of work. Mr. Alexander has not returned to work at A&A or been employed since then. Mr. Alexander claimed at trial that he was permanently totally disabled, which A&A denied. The trial court found that Mr. Alexander was not permanently totally disabled. The court found that Mr. Alexander had a vocational disability of 84% to the body as a whole, but limited his award to 42% permanent partial disability to the body as a whole pursuant to Tenn. Code Ann.  50-6-241. The trial court also awarded Mr. Alexander $525.66 in unpaid medical mileage. Mr. Alexander appeals, contending that the trial court erred in failing to find him permanently totally disabled. Mr. Alexander contends, alternatively, that the Special Workers' Compensation Appeals Panel should find that the statutory cap of six times the anatomical impairment does not apply pursuant to Tenn. Code Ann. 50-6-242, or that the Panel should remand the case to the trial court for such a determination. Finally, Mr. Alexander contends that the trial court should not have accorded a presumption of correctness to the medical impairment rating which resulted from the Medical Impairment Review evaluation pursuant to Tenn. Code Ann.  50-6-204(d)(5). Having carefully reviewed the record, we affirm the trial court’s determination.

I concur with the majority’s holdings as to the trial court’s denial of Mr. Bell’s motion to strike the death notice based on intellectual disability; the constitutionality of Tennessee Code Annotated section 39-13-203 that prohibits the execution of any intellectually disabled person; and the trial court’s denial of Mr. Bell’s motions for mistrial. I agree with the majority’s conclusion that the trial court erred by refusing to allow Mr. Bell to introduce evidence that Rick Harris, the victim’s husband, was having an affair with his ex-wife at the time the victim was murdered. However, I disagree that the error was harmless. In my view, the State failed to demonstrate beyond a reasonable doubt that this error did not affect the outcome of the trial. Because Mr. Bell was deprived of his constitutional right to present a defense and the State failed to show that the error did not affect the verdict, Mr. Bell is entitled to a new trial. For these reasons, I respectfully dissent from the majority’s holding that Mr. Bell is not entitled to a new trial and would pretermit the remaining issues.

In this capital case, the jury convicted the Defendant, Rickey Alvis Bell, Jr., of two alternative counts of first degree felony murder, one count of especially aggravated kidnapping, and one count of aggravated sexual battery. The jury sentenced the Defendant to death for the first degree murder based on four aggravating circumstances. On direct appeal, the Court of Criminal Appeals affirmed the Defendant’s convictions. The Court of Criminal Appeals concluded that the record did not support two of the aggravating circumstances but nonetheless affirmed the death sentence. We now address the following issues: (1) whether the trial court erred in denying the Defendant’s motion to strike the death notice on the ground that he is intellectually disabled; (2) whether Tennessee’s statute prohibiting the execution of intellectually disabled persons is unconstitutional; (3) whether the trial court erred in denying the Defendant’s two motions for mistrial; (4) whether the trial court erred by refusing to allow the Defendant to adduce evidence that the victim’s husband was having an extramarital affair at the time the victim was murdered; (5) whether the evidence was sufficient to support the Defendant’s convictions; and (6) our mandatory review of the Defendant’s death sentence. Upon our thorough review of the record and applicable law, we affirm the Defendant’s convictions and death sentence.

The Petitioner, Gregory Hill, appeals from the Knox County Criminal Court's denial of his petition for post-conviction relief, wherein he challenged his jury convictions for two counts of aggravated assault and resulting sixteen-year sentence. In this appeal as of right, the Petitioner contends that he received the ineffective assistance of trial counsel in the following ways: (1) because trial counsel advised him to reject a favorable guilty plea with a six-year sentence and for which he could apply for probation, opining to the Petitioner that there was a strong chance of acquittal if he proceeded to trial; (2) because trial counsel advised him against testifying on his own behalf, and his decision to do so, based upon that advice, severely limited the evidence put forth to the jury supporting his claim of self-defense; and (3) because, following the trial court's ruling excluding the Petitioner's brother's testimony about a similar act of violence by one of the victims, trial counsel failed to make an offer of proof of said testimony. Discerning no error, we affirm the judgment of the post-conviction court.

This appeal involves a non-probate asset, an individual retirement account. The decedent’s listed beneficiary on the asset predeceased him. The biological son of the decedent moved to collect the proceeds of the asset as the sole heir at law. Two stepchildren sought to be declared the decedent’s “children” in order that they might share in the account with the biological son. The decedent’s will provided for all three individuals to share equally in his real and personal property. The probate court found the term “children” in the retirement account agreement was ambiguous and determined the decedent considered all three individuals to be his “children.” Accordingly, the court ordered that the asset should be distributed equally to Sherry Diane Souder, Terry Ray Palmer, and Gregory Lynn Elrod as “children” of the decedent. The biological son appeals. We affirm.

The Defendant, Freddie Lee Johnson, appeals his conviction for first degree felony murder, arguing:  (1) the State failed to establish a sufficient chain of custody for a latent fingerprint lifted from the crime scene; (2) the Defendant’s right to confrontation was violated when the trial court allowed testimony that the Defendant’s fingerprint was lifted from an area in the crime scene that “raised a red flag”; (3) the Defendant’s right to present a defense was violated when the trial court prohibited trial counsel from arguing an alternative location for the Defendant’s fingerprint; (4) the trial court erred by failing to grant a mistrial when a witness testified that the latent print was lifted from a cup; (5) the trial court erred by refusing to dismiss the indictment pursuant to State v. Ferguson; (6) the trial court erred by allowing the victim’s daughter to testify about comments made by the victim about the Defendant; (7) the trial court violated the Defendant’s right to present a defense by refusing to allow the defense to introduce a prior statement from an unavailable witness; (8) the State committed prosecutorial misconduct in closing argument; (9) the trial court erred in its instruction to the jury on flight; (10) the trial court erred by allowing the State to introduce into evidence portions of the Defendant’s police interview; and (11) the trial court erred by ruling that the State could use the Defendant’s prior theft convictions for impeachment.  Following a careful review of the record and applicable law, we affirm the Defendant’s convictions but remand for correction of the judgments.

The Juvenile Court for Rutherford County (“the Juvenile Court”) terminated the parental rights of Joshua L. (“Father”) to the minor children Kelsey L. and Karlie L. (“the Children”) after finding and holding that grounds to terminate had been proven by clear and convincing evidence and that it also had been proven by clear and convincing evidence that the termination was in the Children’s best interest. Father appeals the termination of his parental rights to the Children raising a single issue regarding the Juvenile Court’s finding as to best interest. We find and hold that the evidence does not preponderate against the Juvenile Court’s findings made by clear and convincing evidence that grounds existed to terminate Father’s parental rights to the Children and that it was in the Children’s best interest for Father’s parental rights to be terminated. We, therefore, affirm. 

In this termination of parental rights case, the minor child was taken into custody by the Tennessee Department of Children’s Services (“DCS”) in February 2014 shortly after Mother’s return to jail following the child’s birth during a furlough. In June 2014, DCS filed a petition to terminate Mother’s parental rights alleging that she was mentally incompetent to parent the child under Tennessee Code Annotated § 36-1-113(g)(8) and that she had abandoned the child pursuant to Tennessee Code Annotated § 36-1-113(g)(1) and Tennessee Code Annotated § 36-1-102(1)(A)(iv). Following a trial, the trial court terminated Mother’s parental rights upon both grounds pled by DCS. Although on appeal we conclude that the abandonment ground was not proven by clear and convincing evidence, we affirm the trial court’s judgment in all other respects.

A Shelby County Criminal Court Jury convicted the appellant, Louis Still, of operating a motor vehicle after having been declared a motor vehicle habitual offender, a Class E felony, and the trial court sentenced him to four years to be served as one month in confinement and the remainder on supervised probation. On appeal, the appellant contends that the evidence is insufficient to support the conviction because the State's key witness, the arresting officer, was not credible. Based upon the record and the parties' briefs, we affirm the judgment of the trial court.

Appellant, Dung Tran, was convicted of theft of property valued at $1,000 or more but less than $10,000, a Class D felony; vandalism valued at $1,000 or more but less than $10,000, a Class D felony; burglary, a Class D felony; and unlawful possession of burglary tools, a Class A misdemeanor. The trial court sentenced appellant to eight years as a Range II, multiple offender for each conviction of theft, vandalism, and burglary and to eleven months, twenty-nine days for the possession of burglary tools conviction. The sentences were aligned concurrently for an effective sentence of eight years. On appeal, appellant argues that the evidence was insufficient to support his theft and vandalism convictions. Following our thorough review of the record, the parties' arguments, and the applicable law, we affirm the judgments of the trial court.

Appellant, David W. Camp, appeals from the Madison County Circuit Court’s finding of criminal contempt for his failure to appear at a scheduled court appearance for Mr. Camp’s client, Christopher Anderson, the defendant in this case. The trial court summarily convicted Appellant under Tennessee Rule of Criminal Procedure 42(a), finding that Appellant was in direct contempt of court and that Appellant’s conduct was in the presence of the court. The trial court relied upon text messages received from Appellant explaining his whereabouts at the time of the scheduled court appearance. We conclude that the trial court’s finding that Appellant’s conduct was in the presence of the court is error, and therefore, we remand this case for a hearing in accordance with Tennessee Rule of Criminal Procedure 42(b).

A Shelby County Grand Jury returned an indictment against Defendant, Michael Brooks, charging him with two counts of especially aggravated kidnapping, two counts of aggravated robbery, two counts of aggravated assault, aggravated burglary, and employing a firearm during the commission of a felony. Two co-defendants were also indicted with Defendant, but Defendant was tried by himself. After the jury trial, Defendant was convicted of one count of especially aggravated kidnapping, two counts of facilitation of aggravated robbery, one count of assault, and aggravated burglary. He was acquitted of the other charges. The trial court imposed a sentence of eighteen years for especially aggravated kidnapping, four years for each count of facilitation of aggravated robbery, eleven months and twenty-nine days for assault, and four years for aggravated burglary. The trial court ordered the sentences to be served concurrently for an effective eighteen-year sentence. On appeal, Defendant argues that the evidence was insufficient to support his conviction for especially aggravated kidnapping and that his sentence is excessive. After a thorough review of the record, we affirm the judgments of the trial court.

The Final Decree of Divorce from which the pro se incarcerated appellant, Treavor E. Warren, seeks to appeal was entered on December 19, 2014. The Notice of Appeal was not timely filed even if the date affixed to the Notice by the appellant (January 30, 2015) is considered. See Tenn. R. App. P. 20(g). Because the Notice of Appeal was not timely filed, we have no jurisdiction to consider this appeal.

An employee alleged that he developed cubital tunnel syndrome and carpal tunnel syndrome as a result of his work activities. His employer provided medical treatment for the former condition but denied liability for both conditions at trial. The trial court found that the cubital tunnel syndrome was compensable but the carpal tunnel syndrome was not. It further found that Employee had a meaningful return to work, thus limiting his recovery to one and one-half times the anatomical impairment. The employee has appealed, asserting that the evidence preponderates against the trial court's findings regarding his carpal tunnel syndrome and return to work. The employer contends that the evidence preponderates against the finding that the cubital tunnel syndrome was compensable. Pursuant to Tennessee Supreme Court Rule 51, 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. We affirm the judgment.

The employee alleged that he sustained a compensable injury to his lower back. His employer initially accepted the claim but later denied it. The trial court found that the employee had sustained a compensable injury. It further found that the testimony of Employee's evaluating physician overcame the presumption of correctness attached to a Medical Impairment Registry (“MIR”) evaluation by clear and convincing evidence. The employer has appealed. The appeal has been referred to the Special Workers’ Compensation Appeals Panel pursuant to Tennesssee Supreme Court Rule 51. We conclude that the trial court erred by finding that the MIR presumption had been overcome, and we modify the judgment accordingly. The judgment is affirmed in all other respects.

Appellant employee appeals from the denial of her claim for unemployment compensation. Because there is substantial and material evidence in the record to establish that the employee was discharged for work-related misconduct, we affirm.

The Defendant-Appellant, Walter Francis Fitzpatrick, III, was indicted by the McMinn County Grand Jury for harassment, aggravated perjury, stalking, and extortion. The trial court granted the defense's motion for judgment of acquittal as to the stalking charge after the close of the State's proof at trial, and it was dismissed. The jury convicted Fitzpatrick of aggravated perjury and extortion, Class D felonies, but found Fitzpatrick not guilty of harassment, a Class A misdemeanor. T.C.A. §§ 39-16-703; 39-14-112; 39-17-308. The trial court sentenced Fitzpatrick to concurrent sentences of three years with a release eligibility of thirty percent for his aggravated perjury and extortion convictions and ordered these sentences to be served consecutively to his misdemeanor convictions in Monroe County for disrupting a meeting and resisting arrest in case number 10-213, resisting arrest in case number 11-018, and tampering with government records in case number 12-108.1 On appeal, Fitzpatrick argues: (1) the trial court lacked jurisdiction over his case because a grand jury member voting to indict him was disqualified by reason of interest, and (2) the evidence is insufficient to support his convictions. Upon review, we affirm the judgments of the trial court.

The Defendant, Tracy Lynn Carman-Thacker, was convicted in a bench trial in the Coffee County Circuit Court of twelve counts of unlawful possession of a firearm while subject to an order of protection and twelve counts of violating an order of protection by possessing a firearm, all Class A misdemeanors. See T.C.A. §§ 39-13-113 (2014) (violation of an order of protection or restraining order), 39-17-1307 (Supp. 2012) (amended 2014) (unlawful carrying or possession of a weapon). On appeal, the Defendant contends that the trial court erred in denying her motion to suppress the evidence found during a search of her house and that the evidence is insufficient to support her convictions. We vacate the Defendant’s convictions and dismiss the charges.

The petitioner, Adrian Wilkerson, appeals pro se from the summary dismissal of his 2014 petition for post-conviction relief, which challenged his 1996 convictions of first degree felony murder, especially aggravated robbery, and theft of property valued at $1000 or more but less than $10,000. Because the petition was filed more than a decade beyond the applicable statute of limitations, because this is the petitioner’s second successive petition for post-conviction relief, and because the petitioner failed to either allege or prove a statutory exception to the timely filing or a due process tolling of the statute of limitations, we affirm the judgment of the post-conviction court.