APPELLATE COURT OPINIONS

The trial court found clear and convincing evidence to terminate Mother’s parental rights to her two children on the grounds of abandonment by failure to establish a suitable home, substantial noncompliance with permanency plans, and persistence of conditions. The trial court also found clear and convincing evidence that termination was in the children’s best interest. Discerning no error, we affirm.

I concur in the majority opinion, but I write separately to express my views regarding the additional issues that arise from warrantless, suspicionless searches of probationers conducted pursuant to a condition of probation. I believe that at a minimum, reasonable suspicion is required before the State may conduct a warrantless search of a probationer who is subject to a warrantless search requirement as a condition of probation. While neither the United States Supreme Court nor the Tennessee Supreme Court have addressed whether something less than reasonable suspicion would permit searches of probationers, both courts have addressed the issue as it related to parolees. See Samson v. California, 547 U.S. 843 (2006); State v. Turner, 297 S.W.3d 155 (Tenn. 2009).

This appeal concerns termination of parental rights. The Tennessee Department of Children’s Services (“DCS”) filed a petition in the Juvenile Court for Warren County (“the Juvenile Court”) seeking to terminate the parental rights of Dara C. (“Mother”) to her minor children Jayden R., Kara C., and Jaxson C. (collectively, “the Children”). DCS also sought to terminate the parental rights of Jonathan C. (“Father”) to Kara C. and Jaxson C. After a trial, the Juvenile Court entered an order terminating Mother’s parental rights to the Children and Father’s parental rights to Kara and Jaxson. Mother and Father appealed. DCS argues that Mother’s and Father’s failure to sign their notices of appeal renders this appeal jurisdictionally deficient. We agree that Mother’s and Father’s failure to sign their notices of appeal as required by Tenn. Code Ann. § 36-1-124(d) renders this appeal jurisdictionally deficient, and it is dismissed on that basis. Even if the appeal were not jurisdictionally deficient, we would, given this record, affirm the Juvenile Court’s judgment terminating Mother’s and Father’s parental rights. We dismiss this appeal for lack of jurisdiction.

The Defendant, Ronald E. McCarter (“Defendant”), seeks to appeal from a ruling of the Trial Court which does not constitute a final judgment. Specifically, the ruling to which the Notice of Appeal is directed in this case did not resolve the amount of attorney’s fees awarded to the Plaintiff, Deborah J. Meadows (“Plaintiff”), nor did it fully resolve Plaintiff’s claims against Tiffany Sharp. As such, it is clear that there is not a final judgment from which an appeal as of right would lie. We therefore lack jurisdiction to consider this appeal

I dissent from the majority opinion for reasons which I will explain. The majority is correct that there is a split of authority as to whether reasonable suspicion must exist before a search may be made pursuant to a probation order providing that, as a condition of probation, the probationer is subject to warrantless searches. See Jay M. Zitter, Validity of Requirement That, as Condition of Probation, Defendant Submit to Warrantless Searches, 99 A.L.R.5th 557 (2002). However, I do not believe it is necessary for this court to make a determination as to this question, for it is clear that the officers had reasonable suspicion to search Angela Hamm’s residence.

The majority opinion dismisses this case due to the failure of Mother and Father to sign the notice of appeal pursuant to Tenn. Code Ann. § 36-1-124(d).  I recognize that the majority opinion is based on a prior Court of Appeals decision, but I respectfully disagree with the majority’s conclusion.

This is an appeal from an order terminating the parental rights of the appellant to her minor child, Kendall H. The only Notice of Appeal filed by the appellant was signed only by her attorney. The appellees have filed a motion to dismiss this appeal arguing that the Notice of Appeal was insufficient to invoke this Court’s jurisdiction because it did not comply with Tennessee Code Annotated section 36-1-124(d), which states: “Any notice of appeal filed in a termination of parental rights action shall be signed by the appellant.” The absence of appellant’s signature on the notice of appeal deprives us of jurisdiction in this case. Accordingly, this case is dismissed.

The Petitioner, Michael Eugene Sample, was convicted in 1982 of two counts of felony murder and was sentenced to death. Following his unsuccessful direct appeal, he began filing, over the next twenty years, a series of various types of post-conviction petitions, all of which were unsuccessful. This appeal followed his claim, filed pursuant to Tennessee Rule of Criminal Procedure 36.1, that he is intellectually disabled and not eligible to be executed. Thus, in his view, his sentence is illegal and void; and he is entitled to a hearing on his claim. Further, he argues that he is entitled to a writ of error audita querela and a writ of error coram nobis. The coram nobis court denied relief as to each of these claims and we affirm the judgment of that court.

The petitioner, Marvin Hurst, Jr., appeals the denial of his post-conviction petition. The petitioner argues he received ineffective assistance of counsel and that, by his actions, counsel overbore the petitioner’s will resulting in the petitioner pleading guilty rather than going to trial. Following our review, we affirm the denial of the petition.

This dispute stems from an agreement for the purchase and installation of a used automobile motor. The parties to the agreement both claim the other breached the agreement. Following a trial, the circuit court determined that the purchaser breached the agreement. Discerning no error, we affirm.

The Petitioner, David Keen, raped and murdered the eight-year-old daughter of his girlfriend in March 1990, later discarding the body by throwing it into the Wolf River in Memphis. He pled guilty in 1991 to first degree murder and aggravated rape and was sentenced, respectively, to death and imprisonment for twenty years. See Keen v. State, 398 S.W.3d 594, 597-98 (Tenn. 2012). In his latest of many post-conviction filings, he argues that the Tennessee Supreme Court erred in its decision in Payne v. State, 493 S.W.3d 478 (Tenn. 2016), which denies relief for his claims; that his coram nobis petition was not time-barred; and that he is entitled to relief under Tennessee Rule of Criminal Procedure 36.1 because his sentence is illegal. He additionally seeks advice from this court as to what other avenues he may utilize in seeking relief. The coram nobis court denied relief, and we affirm that decision and decline to provide the advisory opinion sought by the Petitioner.

Defendant, Marcus Gergish, was found guilty by a jury of one count of criminally negligent homicide and two counts of attempted aggravated robbery and was sentenced to serve an effective twenty-one-year sentence in the Department of Correction. In this appeal, Defendant argues: (1) that the evidence was insufficient to support his convictions; (2) that the prosecutor committed prosecutorial misconduct by destroying evidence; (3) that the prosecutor committed prosecutorial misconduct by misleading the jurors and misstating evidence; (4) that the trial court’s denial of a motion to continue, motion for expert funding, and refusal to allow the defense to call a witness on Defendant’s behalf denied Defendant a fair trial; (5) that the trial court failed to instruct the jury on the issues of dying declarations and lost or destroyed evidence; (6) that the trial court failed to act as the Thirteenth Juror; and (7) that the cumulative effect of all the errors denied Defendant a fair trial. Following a careful review of the record, we find that Defendant’s motion for new trial was not timely filed. Therefore, all of Defendant’s issues except for sufficiency of the evidence are waived, and we decline to exercise our discretion to review the waived issues for plain error. Defendant’s convictions are affirmed.

The trial court dismissed plaintiff’s claim for failure to prosecute and for failing to respond to affirmative defenses. The trial court also denied plaintiff’s motion to alter or amend the judgment. Because disposition of litigation on the merits is favored over procedural dismissals, we reverse. 

This appeal involves a claim for attorney’s fees and other litigation expenses incurred by a third-party defendant in a wrongful death action. The third-party plaintiff filed the third-party complaint against the third-party defendant seeking indemnity. A jury found both the third-party plaintiff and third-party defendant at fault for the death in the underlying action, but because the third-party plaintiff was allocated more than 50% of the fault, the jury determined that the third-party plaintiff was not entitled to indemnification. The third-party defendant filed a post-trial motion for attorney’s fees and expenses incurred in defending the third-party action. The trial court denied the motion, concluding that it lacked subject matter jurisdiction. Although we conclude that it did not lack subject matter jurisdiction, we affirm the denial of the third-party defendant’s motion.

This case involves residential property that was purchased after a foreclosure. The purchaser filed this detainer action against the original homeowners, who refused to vacate the property. The general sessions court ruled in favor of the purchaser, and after a de novo trial in circuit court, the circuit court ruled in favor of the purchaser as well. We do the same. The decision of the circuit court is hereby affirmed and remanded for further proceedings.

This is an appeal from the grant of summary judgment in favor of Appellee. Following Appellant’s knee surgery, Appellee provided Appellant transportation, by wheelchair van, from the rehabilitation hospital to a follow-up appointment with his surgeon. Prior to transport, Appellant signed an exculpatory agreement, releasing Appellee from all claims of ordinary negligence. Appellant was injured when he fell while trying to enter the van and filed suit against Appellee for negligence. The trial court granted summary judgment in favor of Appellee, finding that the exculpatory agreement was enforceable. Discerning no error, we affirm.

Defendant, Francisco G. Parvin, was indicted by the Greene County Grand Jury for aggravated assault resulting in serious bodily injury in Count 1 and aggravated assault by the use of a deadly weapon in Count 2. Following a jury trial, Defendant was convicted in Count 2 of the lesser-included offense of assault and sentenced to 11 months and 29 days, with 120 days to be served in jail and the remainder to be suspended on probation. The record does not contain a judgment form in Count 1, but the record indicates that only Count 2 was submitted for trial. Presumably, Count 1 was dismissed. The offenses in both counts were against the same victim. In this appeal as of right, Defendant contends that the evidence was insufficient to support his conviction in Count 2. After a careful review of the entire record and the parties’ briefs, we conclude that the evidence was sufficient to sustain Defendant’s conviction. Accordingly, we affirm the judgment of the trial court.

This case involves a post-divorce motion for contempt. In her motion, Appellant/Wife averred that Appellee/Husband was in violation of the final decree of divorce. The trial court did not find Appellee in contempt, but entered an order enforcing its final decree of divorce regarding sale of the marital residence, Appellant’s access to the marital residence, and division of Appellee’s 401-K. The trial court also declined to award Appellant half of Appellee’s 2015 tax return. Because the trial court’s order, on the motion for contempt, appears to deviate from its previous order regarding division of Appellee’s 401-K, we reverse this portion of the trial court’s order. The order is otherwise affirmed.

The trial court granted a default judgment against the appellant for claims of conversion, unjust enrichment, and malicious prosecution.  Immediately after granting the default judgment, the trial court awarded the appellee damages without hearing proof.  The appellant filed a motion to set aside the default judgment.  The trial court denied the appellant’s motion.  We affirm the trial court’s decision in all regards except for its award of damages.  The case is remanded for a hearing on damages.

This is an invasion of privacy case filed by Betty Graham. It arises out of disclosures made by the defendants in an underlying health care liability action. In the underlying case, the defendants moved to dismiss Graham’s case on the ground that she (1) had failed to file a statutory-mandated pre-suit notice and (2) had failed to file with her complaint a certificate of good faith, all as required by the Health Care Liability Act (the Act). Graham claims that she could not comply with the Act because the defendants failed to provide her with the relevant medical records. To demonstrate that they had complied or attempted to comply with Graham’s requests for records, the defendants filed in the earlier case two affidavits detailing their response to her requests. After the dismissal of her health care liability action, Graham filed this case for invasion of privacy, alleging that the defendants had wrongfully disclosed her personal medical information by filing the affidavits in the underlying case. The trial court granted the defendants’ motions to dismiss. Graham appeals. We affirm

This is the second appeal of this easement case.  Appellants, the servient land owners, appeal the trial court’s award of a monetary judgment in favor of Appellees, the owners of the dominant estate.  On remand, the parties agreed to have the trial court determine the precise location of the easement, but the trial court refused to hear the issue, and also refused to allow Appellants to make an offer of proof.  We vacate the damage award due to the trial court’s failure to make sufficient findings.  We also conclude that the trial court erred by refusing to determine the location of the easement.  Vacated and remanded.

A hearing panel of the Board of Professional Responsibility determined that a Knoxville attorney should receive a public censure based on his violations of Rules of Professional Conduct 1.3, 1.4, and 8.4(a). The trial court affirmed the hearing panel’s decision. After careful consideration, we affirm the judgment of the trial court. 

I respectfully dissent from the majority opinion in this case.

From the majority’s recitation of the facts in this case, we can all agree that the complainant, Ms. McKeogh, did not get good service overall from Mr. Garland’s office. However, the majority’s recitation of the facts also makes it clear that the problems of which Ms. McKeogh complains arise from the actions or inactions of Mr. Garland’s staff, particularly Ms. Harris and Ms. Snyder.
 

The pro se Petitioner, Barry N. Waddell, appeals the denial of his second motion to reopen his petition for post-conviction relief.  Following our review, we dismiss the appeal for lack of jurisdiction because the Petitioner failed to comply with the statutory requirements governing an appeal from the denial of a motion to reopen post-conviction proceedings.    

Defendant, Roy Allen Carey, was convicted of hindering a secured creditor. He received an alternative sentence of two years’ probation after serving ten days in incarceration. On appeal, he argues that (1) the evidence was insufficient to support his conviction; (2) the amended indictment was void; (3) the bill of particulars was insufficient; (4) the trial court committed error by not providing the requested jury instructions; and (5) the lack of notice as to the prohibited conduct violated his due process rights. After review, we find that the evidence was insufficient to support a conviction for hindering a secured creditor and that the trial court erred by not providing a jury instruction on the creation of a security interest. The judgment of the trial court is reversed and vacated.