APPELLATE COURT OPINIONS

I respectfully disagree with the Court’s decision to affirm the trial court’s conclusion that Marta Vandall sustained a compensable work-related injury.
 

Appellant’s failure to timely file a notice of appeal deprives this Court of jurisdiction to hear the matter and therefore, this appeal must be dismissed.

This appeal sought under Tenn. R. App. P. 3 is from an Order to Register Foreign Decree entered by the trial court on December 14, 2012, which order gave “full faith and credit for enforcement and modification purposes” to the parties’ New Jersey divorce judgment and subsequent consent orders entered by the New Jersey court on the issue of child custody. Subsequent to the entry of the December 14, 2012 order, the appellee (“Father”) filed a petition to modify the child custody provisions of the New Jersey judgment and consent orders. The trial court entered an emergency order on January 9, 2013, temporarily modifying the child custody provisions of the New Jersey judgment and orders to change custody of the parties’ minor children from the appellant (“Mother”) to Father. Pursuant to Rule 10 of Tenn. R. App. P., Mother then sought and was granted an extraordinary appeal from the January 9, 2013 order. See order in Michael Miljenovic v. Sherri E. Miljenovic, No. E2013-00238-COA-R10-CV, (Tenn. Ct. App., Knoxville, Feb. 5, 2013). That case is now pending in this Court. She also sought this Tenn. R. App. P. 3 appeal as to the trial court’s order of December 14, 2012. Since the trial court’s order of December 14, 2012, is not a final order, we have no jurisdiction to consider her Tenn. R. App. P. 3 appeal.

An employee fell while working for her employer and sustained a shoulder fracture. The employer contends that the injury did not arise out of her employment and was an idiopathic fall. The trial court held that the employee sustained the burden of proving that her injury arose out of her employment. We affirm the trial court’s judgment.
 

Father of adult child with spina bifida and other impairments challenges the trial court’s order requiring him to continue to pay child support. We have concluded that the trial court had subject matter jurisdiction in this case. We further find no error in the trial court’s determination that the adult child is severely disabled, in its calculation of child support, or in its determination of the amount owed by Father for past uncovered medical expenses.

The parents of three minor children appeal the termination of their parental rights. The trial court found the Department of Children’s Services established two grounds for termination: 1) severe child abuse pursuant to Tennessee Code Annotated § 36-1-113(g)(4); and 2) persistence of  conditions pursuant to Tennessee Code Annotated § 36-1-113(g)(3). In a previous dependency and neglect proceeding, the Franklin County Circuit Court found that Father severely abused the children’s half-sister and that Mother knew of the abuse but did nothing to protect her child. Neither parent appealed that judgment; as a consequence, the severe abuse findings are res judicata. Pursuant to Tennessee Code Annotated § 36-1113(g)(4), a court may terminate parental rights when the parent is found to have committed severe child abuse under any prior order of a court against any sibling or half-sibling. The trial court also found that termination of both parents’ rights was in the children’s best interests. We therefore affirm.

The order from which the appellant, Charlie D., seeks to appeal was entered on November 30, 2012. The Notice of Appeal was filed on January 4, 2013, more than thirty (30) days from the date of entry of the November 30, 2012 order. Because the Notice of Appeal was not timely filed, we have no jurisdiction to consider this appeal.

Husband and wife entered into a post-nuptial agreement detailing the division of their marital estate. Upon Husband’s subsequent filing of a complaint for divorce, wife moved for a declaratory judgment that the post-nuptial agreement was valid and enforceable. Husband appeals the trial court’s holding that the agreement is enforceable and implementing its provisions. We affirm, holding the post-nuptial agreement is sufficiently definite to be enforced and that the agreement is fair and equitable.

Arthur T. Rogers ("the Defendant") was convicted by a jury of two counts of aggravated sexual battery. The trial court subsequently sentenced the Defendant to two concurrent terms of nine years in the Tennessee Department of Correction. In this delayed direct appeal, the Defendant challenges the sufficiency of the evidence supporting his convictions. After a thorough review of the record and the applicable law, we affirm the judgments of the trial court.

This appeal arises from a dispute over a parenting plan. Shantha Grace Pandian (“Mother”) sued Juan Francisco Rodriguez (“Father”) for divorce in the Circuit Court for Washington County (“the Trial Court”). The Trial Court granted the parties a divorce. The case then proceeded to focus on a parenting plan for the parties’ two children, Christopher and Ethan (collectively, “the Children”), both boys with different special needs. Father requested equal time with the Children on a weekly alternating basis. Mother, on the other hand, wanted to have the Children most of the time, and argued that Father’s plan would be too disruptive for the Children. The Trial Court entered a parenting plan designating Mother as the primary residential parent and granting her most of the time with the Children. Father appeals, arguing that the Trial Court should have adopted his proposal for equal custodial time with the Children. We affirm the judgment of the Trial Court.

A detective with the City of Cleveland filed a petition for common-law writ of certiorari with the Circuit Court, seeking review of the City Manager’s ruling affirming the City’s decision to terminate his employment. At the hearing before the trial court, the petitioner proffered new and additional evidence that was not presented to the City Manager. The trial court sustained the City’s relevancy objection and allowed the petitioner to make an extensive offer of proof. We hold that the trial court did not abuse its discretion in excluding the new and additional evidence, that there is material evidence supporting the City Manager’s decision, and that the City Manager did not act arbitrarily or capriciously in deciding to uphold the City’s decision to fire the petitioner. We therefore affirm the judgment of the trial court.

Because the order appealed is not a final judgment, we dismiss this appeal for lack of jurisdiction.

Because the order appealed is not a final judgment, we dismiss this appeal for lack of jurisdiction.

The Departmentof Safety, acting pursuant toTennesseeCode Annotated § 39-17-1352(a)(1), revoked Petitioner’s handgun carry permit based upon the Department’s independent determination that Petitioner had been convicted of “a misdemeanor crime of domestic violence” as defined by 18 U.S.C. § 921(a)(33). The revocation arises out of an incident in which Petitioner was charged with two counts of aggravated assault, one count that pertained to his ex-wife and one count that pertained to her male companion. Petitioner subsequently pled guilty to one count of simple assault under Tennessee Code Annotated § 39-13-101. When Petitioner received notice that his handgun permit had been administratively revoked, he filed an appeal in the general sessions court, which reversed the Department’s decision and ordered reinstatement of Petitioner’s permit. The Department then appealed to the circuit court, which also ordered reinstatement of the handgun permit. This appeal followed. A “misdemeanor crime of domestic violence,” for purposes of 18 U.S.C. § 922(g)(9), requires a use of force and a domestic relationship. In the underlying criminal case, Petitioner was charged with assaulting two people, Petitioner’s ex-wife and her male friend. Petitioner pled guilty to only one count of misdemeanor assault and the record does not establish whether Petitioner pled guilty to assaulting his ex-wife or her male companion. A “misdemeanor crime of domestic violence” includes an offense “committed by” a person who had a specified domestic relationship with the victim, whether or not the misdemeanor statute itself designates the domestic relationship as an element of the crime and, pursuant to United States v. Hayes, 555 U.S. 415 (2009), the victim’s domestic relationship with the defendant must be established beyond a reasonable doubt for the offense to constitute a crime of domestic violence under 18 U.S.C. § 922(g)(9). The record in this case does not establish that the victim of the count of simple assault to which Petitioner pled guilty was his ex-wife. Therefore, the record does not support the Department’s determination that Petitioner was convicted of a misdemeanor crime of domestic violence for purposes of 18 U.S.C. § 922(g)(9). Accordingly, we affirm.

Defendants appeal from an order of the trial court enjoining them from operating a wrecker service in Davidson County without a license. The trial court found that the ordinances at issue applied to Defendants’ wrecker services and that Defendants violated the provisions of the Metropolitan Code of Laws by their operation of a wrecker service without a license in Davidson County. The trial court also rejected Defendants’ arguments that the ordinances were preempted by federal law and violated the equal protection guarantees of the United States and Tennessee Constitutions. The trial court then enjoined Defendants from operating a wrecker service in Davidson County. We affirm the trial court in all respects.
 

The dispositive jurisdictional issue in this case is whether the underlying juvenile court proceeding was merely a custody action or a part of a dependency and neglect proceeding wherein custody was also at issue. The pleading that was tried in the juvenile court was Father’s Amended Petition for Custody and to Determine Parenting Plan and, in the Alternative, Petition for Dependent and Neglect. Following the trial on the amended petition, the juvenile court judge found the evidence insufficient to prove dependency and neglect; however, the juvenile court awarded custody of the parties’ child to Father on a best interest determination. Mother appealed the judgment of the juvenile court to the circuit court. The circuit court dismissed the appeal on the motion of Father, finding it lacked jurisdiction because the juvenile court did not find the child dependent and neglected. The appeal was then transferred to this court. Although the juvenile court did not find the child dependent and neglected, the juvenile court awarded custody to Father following a trial which was part of a dependency and neglect proceeding. Therefore, as In re D.Y.H., 226 S.W.3d 327 (Tenn. 2007), instructs, the circuit court has jurisdiction to hear Mother’s appeal because the juvenile court’s custody decision arose from and was part of a dependency and neglect proceeding. Accordingly, we reverse and remand this appeal to the circuit court for a de novo hearing.

This is a termination of parental rights case focusing on Landen P. (“the Child”), the minor daughter of Kevin P. (“Father”) and Ciera P. (“Mother”). The Child was born in 2007, while the parents were residing in Florida. In 2008, Mother left Father and the Child and moved to Utah. Thereafter, she maintained sporadic contact with the Child only by telephone. Father subsequently moved with the Child to Cleveland, Tennessee in 2009. In 2011, Father’s mother and stepfather, Judy and Todd R., obtained custody of the Child through proceedings in the Bradley County Juvenile Court. Judy and Todd R. filed the instant petition seeking to terminate Mother’s parental rights on August 1, 2011, for the purpose of adopting the Child. Having been arrested in May 2011, Father was incarcerated at the time of trial. Father consented to the adoption, and his parental rights were terminated on February 24, 2012. Following a bench trial, the trial court granted the petition and terminated Mother’s parental rights. The court found, by clear and convincing evidence, that Mother had abandoned the Child by failing to visit and support her during the relevant four-month time period and that termination was in the Child’s best interest. Mother has appealed. We affirm.

This appeal involves a constitutional challenge to T.C.A. 29-26-121, which requires notice to defendants prior to the commencement of a health care liability lawsuit. The plaintiff filed a lawsuit asserting health care liability against the defendant health care providers within the applicable statute of limitations, but without providing the defendants with prior notice as required under Section 29-26-121. In ruling on the defendants’ motion for summary judgment, the trial court held that Section 29-26-121 conflicted with Rule 3 of the Tennessee Rules of Civil Procedure. On this basis, it held that the statute infringed upon the authority of the judicial branch to enact rules governing the procedures for commencing a lawsuit, and thus violated the separation of powers clause of the Tennessee Constitution. The defendant health care providers were granted permission for this interlocutory appeal under Rule 9 of the Tennessee Rules of Appellate Procedure. We reverse, holding that pre-lawsuit notice requirement in Section 29-26-121 does not contravene the separation of powers clause of the Tennessee Constitution.

This appeal involves the child support obligation of a man who is not the biological father of the children at issue. The wife gave birth to two children during the parties’ marriage. The husband filed for divorce, and subsequent DNA tests confirmed that the husband was not the father of either child. The trial court held that the husband had no legal obligation to pay child support. The wife now appeals, arguing that the husband should be required to pay child support because he is the children’s “legal father.” Discerning no error, we affirm.

We granted this appeal to determine whether the trial court erred by denying the defendant’s motion to suppress his statements to the police on the grounds that they were elicited in violation of his constitutional right to counsel and were involuntary. We have determined that the defendant did not unequivocally request counsel and therefore did not invoke his constitutional right to counsel. Nevertheless, we have also determined that the State failed to prove by a preponderance of the evidence that the defendant waived the rights enumerated in Miranda v. Arizona, 384 U.S. 436 (1966). Thus, we hold that the defendant’s statements were erroneously admitted into evidence, but the physical evidence discovered as a result of his statements was properly admitted because the totality of the circumstances shows that the defendant’s statements were voluntary and not coerced. We also hold that the State failed to establish that the erroneous admission of the defendant’s statements was harmless beyond a reasonable doubt. Accordingly, the defendant’s convictions of second degree murder and abuse of a corpse are vacated, and this case is remanded for further proceedings.

Police utilized a confidential informant to arrange a drug buy from a co-defendant. At the scheduled time and location, the co-defendant arrived in his truck with the defendant and another passenger. A police takedown resulted in the arrest of the three men. A consensual search of the truck yielded approximately 153 grams of cocaine and 8.6 grams of marijuana in close proximity to where the defendant had been seated. A subsequent consensual search of the co-defendant’s residence, located several miles away, yielded an additional 293.5 grams of cocaine and various items of drug paraphernalia. The State consolidated the weight of the cocaine and charged the defendant with possession with intent to sell 300 grams or more of cocaine, a Class A felony; possession of marijuana; and possession of drug paraphernalia. The jury convicted the defendant of possession with intent to sell 300 grams or more of cocaine and possession of drug paraphernalia. We hold that although the evidence was sufficient to support a finding that the defendant constructively possessed the cocaine in the co-defendant’s truck, the evidence was insufficient to support a finding that he constructively possessed either the cocaine or the drug paraphernalia in the co-defendant’s residence. Accordingly, we reduce the conviction for possession with intent to sell 300 grams or more of cocaine to possession with intent to sell 26 to 299 grams of cocaine, a Class B felony, and we vacate the conviction for possession of drug paraphernalia. The case is remanded to the trial court for re-sentencing on the reduced offense.

A jury convicted the defendant of premeditated first degree murder for shooting and killing a police officer. As the penalty phase of the trial began, the defendant refused to allow his lawyers to present mental health mitigation evidence. After questioning the defendant about his decision, the trial court directed two mental health experts to evaluate the defendant’s mental competency. After the evaluation, the mental health experts testified that they could not render an opinion as to the defendant’s competency because the defendant had refused to cooperate. The trial court ruled that the defendant had failed to overcome the presumption of competency and was therefore competent to waive the presentation of expert mental health testimony. The State proved the existence of two aggravating circumstances pursuant to Tennessee Code Annotated sections 39-13-204 (i)(2) and (9) (2006). The defendant presented testimony from family and  friends. The jury sentenced the defendant to death. The Court of Criminal Appeals affirmed the defendant’s conviction and sentence. State v. Johnson, No. E2010-00172-CCA-R3-DD, 2012 WL 690218 (Tenn. Crim. App. Mar. 5, 2012). We hold that a mentally competent defendant may waive the presentation of mitigation evidence during the penalty phase of a capital trial. We further hold that (1) the evidence does not preponderate against the trial court’s ruling that the defendant was mentally competent to waive the presentation of mitigation evidence; (2) the trial court did not err in overruling the defendant’s motion for a mistrial based on the State’s improper reference to abortion during its closing argument; (3) the defendant’s challenge to the constitutionality of Tennessee’s death penalty is without merit; and (4) based on our review of the death sentence, as required by Tennessee Code Annotated section 39-13-206(c) (2010), the death sentence was not imposed in an arbitrary fashion; the evidence supports the jury’s finding of statutory aggravating circumstances; the evidence supports the jury’s finding that the aggravating circumstances outweigh any mitigating circumstances; and the sentence of death is not excessive or disproportionate to the penalty imposed in similar cases. We affirm the defendant’s first degree murder conviction and sentence of death.

A Shelby County Criminal Court Jury convicted the appellant, Kalvin Hardaway, of reckless aggravated assault and initiating a false report, Class D felonies. After a sentencing hearing, the trial court sentenced him as a Range III, career offender to twelve years for each conviction to be served concurrently. On appeal, the appellant contends that the evidence is insufficient to support the convictions and that the trial court erred by refusing to allow him to question the victim about the victim’s drug use. Based upon the record and the parties’ briefs, we affirm the judgments of the trial court.

This appeal arises out of a breach of contract action. Following the presentation of the plaintiffs’ proof, the court granted defendants’ motion to dismiss. We vacate the decision of the trial court and remand the case for findings of fact required by Tenn. R. Civ. P. 41.02(2) and 52.

The Petitioner, Vincent Lanier, appeals the Shelby County Criminal Court’s denial of his petition for writ of habeas corpus. The Petitioner was indicted for rape but entered a guilty plea to statutory rape. On appeal, the Petitioner argues that his judgment is void because (1) he entered a guilty plea to statutory rape, which is not a lesser included offense of the charged offense of rape, and his indictment was never amended from rape to statutory rape, and (2) trial counsel and the trial court failed to advise him that he would have to comply with the registration requirements of Tennessee’s sexual offender registration act because of his guilty plea to statutory rape. See T.C.A. § 39-13-506(d)(2)(B) (stating that “[i]n addition to the punishment provided for a person who commits statutory rape for the first time, the trial judge may order, after taking into account the facts and circumstances surrounding the offense, including the offense for which the person was originally charged and whether the conviction was the result of a plea bargain agreement, that the person be required to register as a sexual offender pursuant to title 40, chapter 39, part 2”). Upon review, we affirm the habeas corpus court’s summary dismissal of the petition.