APPELLATE COURT OPINIONS

This appeal involves disestablishment of paternity. The putative father allegedly signed a voluntary acknowledgment of paternity and the child’s birth certificate when the child at issue was born. The mother did not tell him at the time that she had had sexual relations with another man during the time period in which the child was conceived. The State of Tennessee, on behalf of the mother, obtained an order against the putative father, establishing parentage and setting child support. After a private DNA test showed that the putative father was not the biological father of the child, he filed a petition in juvenile court to disestablish paternity and set aside under Tenn. R. Civ P. 60. The juvenile court denied the petition, holding that the putative father did not offer proof of fraud in the procurement of his signature on the alleged voluntary acknowledgment of paternity. The putative father now appeals. On appeal, we find no voluntary acknowledgment of paternity in the record, and no evidence regarding the alleged voluntary acknowledgment of paternity, and so cannot consider it in the appeal. We reverse the trial court’s denial of the putative father’s petition to set aside the order establishing parentage and child support under Rule 60.02, and remand for further proceedings.

This is an interlocutory appeal as of right pursuant to Tennessee Supreme Court Rule 10B from the denial of a motion to recuse the Trial Court Judge from presiding over post-divorce contempt proceedings initiated by Susan W. Phillips (“Former Wife”) against Samuel B. Phillips (“Former Husband”). Having reviewed Former Husband’s Petition for Recusal Appeal pursuant to Rule 10B of the Rules of the Tennessee Supreme Court, and upon consideration of Former Wife’s motion to dismiss the appeal, we deny Former Wife’s motion to dismiss this appeal and affirm the Trial Court’s denial of Former Husband’s motion to recuse.

The State of Tennessee Department of Children’s Services (“DCS”) filed a petition seeking to terminate the parental rights of Linda J.M.A. (“Mother”) to the minor child Alicia K.A. (“the Child”) . After a trial, the Juvenile Court entered its Termination of Parental Rights and Final Decree of Guardianship finding and holding, inter alia, that clear and convincing evidence had been proven that grounds existed to terminate Mother’s parental rights under Tenn. Code Ann. §§ 36-1-113(g)(1), (g)(3), and (g)(8), and that the termination was in the Child’s best interest. Mother appeals the termination of her parental rights to this Court. We affirm.

Appellant, Patrick Timothy Lowe, pleaded guilty to one count of driving under the influence of an intoxicant, first offense, subject to reserving a certified question of law. The trial court imposed the agreed-upon suspended sentence of eleven months, twenty-nine days. Following our review of the record, we affirm the judgment of the trial court. However, we remand this case for entry of judgment forms reflecting the dispositions of Count I of the indictment, driving with a blood alcohol content of .08% or more, and Count III of the indictment, reckless driving.

Defendant, Kewan Callicutt, was indicted by the Shelby County Grand Jury for attempted especially aggravated robbery. Defendant was convicted as charged by a jury and sentenced by the trial court to serve 12 years in the Department of Correction. On appeal, Defendant asserts that: 1) the trial court erred by denying his motion to suppress his statements to the police because he was under the influence of a drug or intoxicant when he waived his Miranda rights; 2) there was insufficient evidence to support his conviction; and 3) his sentence is excessive. Finding no error, we affirm the judgment of the trial court.

A nurse whose employment at the University of Tennessee Regional Memorial Medical Center was terminated by the hospital brought a complaint against the State, alleging, inter alia, breach of contract and negligent deprivation of her property right to her position as a career state employee. The Claims Commission, William O. Shults, Commissioner, dismissed the claims, concluding that the Commission was without subject matter jurisdiction. The nurse appealed. We affirm.

A jury convicted the defendant, Anthony Woods, of one count of facilitation of intent to deliver less than 0.5 grams of cocaine, a Class D felony, and one count of simple possession of marijuana, a Class A misdemeanor. The trial court sentenced the defendant to concurrent sentences of six years for the facilitation conviction and to eleven months and twenty-nine days for the simple possession conviction. The physical evidence in the case was seized pursuant to a search warrant issued for the home of the defendant’s girlfriend and the defendant’s teenage daughter. The defendant’s original appeal was dismissed due to an untimely notice of appeal. State v. Woods, No. W2010-01301-CCA-R3-CD, 2012 WL 134243, at *2 (Tenn. Crim. App. Jan. 13, 2012). The defendant then brought a postconviction petition, and the post-conviction court granted the defendant this delayed appeal pursuant to Tennessee Code Annotated section 40-30-113(a)(1). The defendant challenges the sufficiency of the evidence, the trial court’s refusal to admit an audio recording or transcript of the preliminary hearing into evidence, and the legality of the search warrant. Because the search warrant failed to adequately establish the credibility of the confidential informant and because the defendant had standing to challenge the warrant, we reverse the defendant’s convictions.

This action sounding in negligence and breach of contract was dismissed by the trial court pursuant to Rule 12 of the Tennessee Rules of Civil Procedure. Plaintiffs alleged in their complaint that Defendant negligently performed professional services concerning the provision and maintenance of web defense software and that Defendant breached its contractual duty to protect the computer system of Copper Basin Federal Credit Union from computer incursion. For the reasons stated herein, we hold that the complaint alleges sufficient facts to allow the case to proceed, and, therefore, dismissal was in error. The decision below is reversed, and the case is remanded for further proceedings.

A Monroe County jury found the Defendant, Phillip Trevor Lenoir, guilty of aggravated child neglect. Thereafter, the trial court judge recused herself and a successor judge was appointed. The successor judge sentenced the Defendant as a Range I offender to serve twenty-five years in the Department of Correction. The Defendant appeals claiming: (1) the successor judge failed to engage in the proper analysis as the thirteenth juror; (2) the trial court erred when it denied the Defendant’s motion for a continuance; (3) the State was statutorily required to make an election between aggravated child abuse and aggravated child neglect; (4) the evidence is insufficient to support his convictions; (5) the trial court failed to require the jury to announce the fines imposed; (6) the trial court failed to instruct the jury on “third-party culpability;” and (7) the trial court erred when it did not allow the Defendant to offer “reliable hearsay” in his defense. After a thorough review of the record and relevant law, we conclude that because the successor judge was unable to properly approve the verdict as “thirteenth juror,” a new trial must be granted. Accordingly, the judgment of the trial court is reversed and this case is remanded for a new trial.

A Maury County Criminal Court Jury convicted the appellant, Raina Fisher, of three counts of theft of property valued $1,000 or more but less than $10,000, a Class D felony; one count of theft of property valued more than $500 but less than $1,000, a Class E felony; and one count of attempted theft of property valued $1,000 or more but less than $10,000, a Class E felony. The trial court sentenced her as a Range II, multiple offender to an effective sentence of seven years. On appeal, the appellant contends that the evidence is insufficient to support the convictions. Based upon the record and the parties’ briefs, we affirm the judgments of the trial court.

This appeal involves the breach of an oral contract. Defendants approached Plaintiff about utilizing fill dirt on Plaintiff’s property. Plaintiff agreed. Defendants subsequently executed a plan to control the sediment as they excavated the property. Over the course of the next three years, the City of Knoxville sent Plaintiff two notices of violation, one of which carried a fine, for improper sediment control, illegal dumping and discharge, and failure to obtain a city permit. Defendants paid the fine, applied for a city permit as required, and attempted to stabilize the property. Two years later, Plaintiff received two more notices of violation, one of which carried a fine. Plaintiff paid the fine and hired an engineer to properly stabilize the property after Defendants refused to respond to his request for assistance. Plaintiff then filed suit for breach of contract, seeking reimbursement for his payment of the second fine and for the cost of professionally stabilizing the property. Defendants denied liability and asserted that a contract had never been formed. The trial court found that a contract existed, that Defendants breached the contract, and that Plaintiff was entitled to damages in the amount of $29,249.02. Defendants appeal. We affirm the decision of the trial court.

Richard Madkins (“the Petitioner”) filed a petition for writ of habeas corpus. The habeas corpus court summarily dismissed his petition without a hearing, and the Petitioner now appeals. On appeal, the Petitioner presents three claims: (1) that the trial court violated his Sixth Amendment rights when it sentenced him to twenty-five years for his especially aggravated robbery conviction; (2) that the trial court did not have authority to sentence the Petitioner as a Range I offender because the State waived Range I sentencing when it filed a notice of intent to seek Range III punishment; and (3) that the Petitioner’s sentence violates principles of double jeopardy. After a thorough review of the record and the applicable law, we affirm the habeas corpus court’s summary dismissal of the petition for habeas corpus relief.

This matter is before the Court upon the State’s motion to affirm the judgment of the trial court by memorandum opinion pursuant to Rule 20 of the Rules of the Court of Criminal Appeals. The Petitioner, Russell Jensen, filed a petition for habeas corpus relief, which the trial court summarily dismissed. This case meets the criteria for affirmance pursuant to Rule 20 of the Rules of the Court of Criminal Appeals. Accordingly, the State’s motion is granted, and the judgment of the trial court is affirmed.

The defendant, Broderick Devonte Fayne, was convicted by a Tipton County jury of aggravated burglary and employing a firearm during the commission of a dangerous felony, both Class C felonies. The trial court sentenced him as a Range I, standard offender to consecutive terms of three years at 30% for the aggravated burglary conviction and to six years at 100% for the employing a firearm during a dangerous felony conviction, for a total effective sentence of nine years in the Department of Correction. In a timely appeal to this court, the defendant raises the following issues: (1) whether the evidence is sufficient to sustain his conviction for employing a firearm during the commission of a dangerous felony; (2) whether the trial court erred by denying his motion for a mistrial following the prosecutor’s introduction of his defense counsel as employees of the public defender’s office; (3) whether the trial court properly allowed the defendant’s accomplice to testify regarding his understanding of the charges against him; (4) whether his right to a fair trial was violated by the State’s arguing alternate theories of his guilt; and (5) whether the trial court erred by denying his request for jury instructions defining possession and constructive possession. Following our review, we affirm the judgments of the trial court.

Petitioner, Jerome Sidney Barrett, was convicted of first degree murder stemming from a murder that occurred in Davidson County in 1975 and received a life sentence. State v. Jerome Sidney Barrett, No. M2010-00444-CCA-R3-CD, 2012 WL 2914119, at *1 (Tenn. Crim. App., at Nashville, Jul 18, 2012), perm. app. denied, (Tenn. Dec. 12, 2012). He was unsuccessful on appeal to this Court. Id. at *32. He subsequently filed a petition for writ of error coram nobis. In his petition, he argued that the DNA evidence used at this trial was not independently evaluated and that the forensic pathologist, Dr. Bruce Levy, who testified at his trial regarding the DNA evidence, was not a credible witness because he was arrested for drug crimes in Mississippi more than a year after Petitioner’s trial. The lower court dismissed the petition without a hearing. After reviewing the record on appeal, we conclude that the lower court did not abuse its discretion in dismissing the petition as untimely.

The State appeals the trial court’s grant of a motion to suppress filed by the Defendant, Joshua Shane Hayes. The State contests the trial court’s finding that the "Exclusionary Rule Reform Act," which took effect July 1, 2011, did not apply retroactively to the search wherein officers seized drugs from the Defendant. After a thorough review of the record and applicable law, we affirm the trial court’s judgment.

The Appellant appeals the trial court's dismissal of his petitions for writs of error coram nobis. Having determined that the petitions were properly dismissed, this Court hereby affirms the orders of the trial court.

Appellee, Charles Ewing Kennedy, was indicted by the Maury County Grand Jury for driving under the influence, second offense; speeding; and violation of the implied consent law. Appellee moved to suppress the evidence against him regarding the driving under the influence count. The trial court granted his motion to suppress. This court granted the State’s application for permission to appeal. On appeal, the State argues that the trial court incorrectly applied a sufficiency of the evidence standard when granting appellee’s motion to suppress rather than making a probable cause determination. The State urges this court to reverse the trial court’s ruling and to conclude that the police had probable cause to arrest appellee for driving under the influence. Following our review, we reverse the ruling of the trial court and remand for further proceedings consistent with this opinion.

The petitioner, Dameion Nolan, filed in the Knox County Criminal Court a petition for postconviction relief, alleging that his trial counsel was ineffective by failing to explain that he would be required to remain on the sexual offender registry for life as a result of his guilty pleas to five counts of especially aggravated kidnapping, three counts of aggravated rape, two counts of aggravated robbery, and one count of aggravated burglary and the resulting effective twenty-five-year sentence. The petitioner also contended that his guilty pleas were not knowingly and voluntarily entered. The post-conviction court denied the petition, and the petitioner timely appealed. In addition to his ineffective assistance claim, the petitioner maintains that the post-conviction court erred by allowing trial counsel to remain in the courtroom during the proceedings. Upon review, we affirm the judgment of the post-conviction court.

The primary issue in this interlocutory appeal is whether the Tennessee health care liability statute of repose, Tenn. Code Ann. § 29-26-116(a)(3) (2012) (“the statute of repose”), is an affirmative defense under Tenn. R. Civ. P. 8.03, that is waived if not raised in a timely manner. Sandra Y. Jones Pratcher died following complications that arose on December 4, 1999, when she received anesthesia before undergoing a cesarean section. On December 1, 2000, her husband, Eddie C. Pratcher, Jr., (“Plaintiff”) filed suit against various health care providers, including Consultants in Anesthesia, Inc. (“Defendant”) and one of its nurse anesthetists. Plaintiff alleged that Defendant, which contracted with the hospital to provide anesthesia services to its obstetric patients, was vicariously liable for the negligent acts of its nurse anesthetist. Plaintiff amended his complaint on March 3, 2006, to assert that Defendant was also vicariously liable for the negligent actions of its corporate owner and president, Dr. Chauhan, who was on call on December 4, 1999, but failed to come to the hospital to administer anesthesia to Plaintiff’s wife. Plaintiff amended his complaint two more times and each time asserted that Defendant was vicariously liable for the negligent acts of Dr. Chauhan. Defendant did not raise the statute of repose as a defense to the vicarious liability claim based on Dr. Chauhan’s alleged negligence. After the jury returned a verdict for all defendants, the trial court set aside the verdict based on an error in the verdict form and its disapproval of the verdict as thirteenth juror. After the trial court granted a new trial as to all parties, Defendant moved to dismiss the case based on the statute of repose and to amend its answer to assert a statute of repose defense. The trial court ruled that Defendant had waived the statute of repose defense and denied the motions. We hold that (1) the running of the statute of repose does not deprive the trial court of subject matter jurisdiction; and (2) as Rule 8.03 explicitly states, the statute of repose is an affirmative defense. Defendant failed to timely raise the statute of repose as an affirmative defense. Therefore, the trial court did not abuse its discretion by denying Defendant’s posttrial motion to amend its answer to assert the statute of repose as a defense. The judgment of the trial court is affirmed.

This divorce appeal involves the classification of the appreciation in value of separate property. During the marriage, the wife’s family gave her ownership interests in two family companies. The parties used marital funds to pay their tax liabilities arising out of income from the companies that was attributed to them for tax purposes but retained by the companies. The trial court held that the appreciation in value of the wife’s ownership interests in the family companies were her separate property. We hold that, under the circumstances of this case, the parties substantially contributed to the preservation and appreciation in value of the wife’s separate assets, and so reverse the trial court’s classification of the appreciation in value as her separate property.

The Defendants, Gregory Todd Whitaker and David Paul Coffey, were both indicted for manufacturing twenty or more, but less than 100, marijuana plants, a Class C felony; and possession of drug paraphernalia, a Class A misdemeanor. See Tenn. Code Ann. §§ 39-17-417(g)(3), -425(a)(1). The Defendants both filed motions to suppress the evidence recovered during a search of Defendant Whitaker’s trailer home. The trial court granted the Defendants’ motions and dismissed the indictments. In this appeal as of right, the State contends that the trial court erred by granting the Defendants’ suppression motions. Following our review, we reverse the judgments of the trial court and remand the cases for further proceedings consistent with this opinion.

This appeal involves the Full Faith and Credit Clause and firearm rights. The petitioner was convicted of felony drug offenses in Georgia. The State of Georgia granted the petitioner a full pardon for his crimes; his Georgia pardon expressly restored his right to possess a firearm. The petitioner now resides in Tennessee. A Tennessee statute provides that it is a felony for a person who has been convicted of a felony drug offense to possess a firearm, and it does not make an exception for persons who have been pardoned for their crime. The petitioner filed this declaratory judgment action against the State of Tennessee, seeking a declaration that, because he received a pardon for his drug offenses in Georgia, he can purchase or possess a firearm in Tennessee without violating the Tennessee statute. The trial court held in favor of the petitioner, concluding that the Full Faith and Credit Clause of the United States Constitution requires Tennessee to recognize Georgia’s pardon in full and to permit the petitioner to carry a firearm in Tennessee. The State of Tennessee now appeals. On appeal, we consider the public-policy exception to the Full Faith and Credit Clause. We hold that Tennessee’s public policy on the restoration of firearm rights for a convicted non-violent drug felon is not entirely inconsistent with Georgia’s public policy, so the public-policy exception to full faith and credit is not applicable in that situation. However, Tennessee public policy proscribes the restoration of firearm rights for a convicted violent drug felon, contrary to Georgia’s public policy allowing the restoration of firearm rights for all felons, violent or not. This Tennessee policy implicates public safety so as to warrant application of the public-policy exception to the Full Faith and Credit Clause under the appropriate circumstances. Therefore, we vacate the trial court’s grant of judgment on the pleadings and remand for further proceedings consistent with this opinion.

Oscar Thomas (“the Petitioner”) filed a petition for post-conviction relief from his guilty-pleaded convictions for carjacking and employing a firearm during the commission of a dangerous felony. After an evidentiary hearing, the post-conviction court denied relief, and this appeal followed. On appeal, the Petitioner contends that his plea was constitutionally invalid due to the ineffective assistance of counsel. He also contends that his employing a firearm during the commission of a dangerous felony conviction violates Tennessee Code Annotated section 39-17-1324(c). Upon our thorough review of the record and applicable law, we affirm the judgment of the post-conviction court.

This is a contested easement action regarding wooded mountain property in Monroe County. The Plaintiffs/Appellants, James and Edna Eberle, filed a complaint requesting that the Defendant/Appellee, Lisa Parrott Elliott, be enjoined from crossing the Eberles’ property from her adjoining thirty-acre tract without benefit of an easement. Following a bench trial, the Monroe County Chancery Court dismissed the Eberles’ complaint for injunctive relief and ruled that an easement exists for ingress and egress over the Eberles’ property, appurtenant to and serving Ms. Elliott’s property. The Eberles have appealed. At issue is whether the trial court erred by finding the existence of an easement, either express, prescriptive, or implied. The Eberles also assert that the trial court erred by failing to limit the easement to a use no greater than the use previously made over the servient property. Discerning no error, we affirm the trial court’s ruling that an easement exists for ingress and egress and the court’s dismissal of the complaint for injunctive relief.