APPELLATE COURT OPINIONS

This is the second appeal from the Trial Court's altering the custodial arrangement of the parties' minor child. In the first trial, the Trial Court excluded testimony of the child's stepfather, on the grounds that the mother had not properly noticed the Court and party that the stepfather was a witness. On the first appeal, this Court remanded this case to the Trial Court and directed that the stepfather's testimony be allowed. On remand, the stepfather testified at length, but it was revealed during his examination that he had read the entire evidentiary transcript of the first trial. The Trial Court then ruled that the stepfather's testimony should be stricken, but went ahead and considered his testimony and essentially determined that his testimony did not alter the weight of the evidence as found in the first trial, and affirmed the Court's original award of granting custody to the father. On appeal, we affirm.

We granted permission to appeal in this case in order to consider whether Tennessee Rule of Criminal Procedure 33 permits a defendant to amend his motion for new trial after the hearing on the initial motion has been conducted and an order denying the motion has been entered. In this case, newly-appointed defense counsel filed several pleadings seeking to add grounds in support of a new trial after the hearing on the original motion for new trial had been held and an order denying a new trial had been entered. The trial court considered the new grounds and subsequently entered a second order denying a new trial. The defendant appealed. The Court of Criminal Appeals refused to consider any issues raised after the trial court denied the original motion for new trial. As to the issues that were raised in that motion, the Court of Criminal Appeals determined that the defendant is not entitled to relief. We have concluded that trial courts should not permit the defense to amend its motion for new trial after the new trial hearing has been held and an order denying a new trial has been entered. Further, we have reviewed an issue the defendant properly preserved and have reviewed for plain error the issues the defendant failed to preserve but argues to this Court. We hold that the defendant is not entitled to relief on any of these issues and therefore affirm the judgment of the Court of Criminal Appeals.

Petitioner, a prisoner, filed a Common Law Writ of Certiorari in the Chancery Court, alleging that he had been illegally disciplined while incarcerated. Respondents agreed that the writ should be granted and thereafter they filed a Motion to Dismiss the action. The Trial Judge dismissed the writ and petitioner has appealed. On appeal, petitioner argues that the allegations set forth in his petition must be taken as true under the Rules of Civil Procedure. The factual allegations pled by petitioner, when taken as true, state a cause of action. We therefore vacate the Order of Dismissal and remand for further proceedings.

This is a divorce case. Father/Appellant appeals the trial court's decision to designate Mother/Appellee the primary residential parent of the parties' two minor children, and the trial court's refusal to enter an order restraining the Mother's paramour from being around the children. This Court concludes that the evidence does not preponderate against the trial court's factual findings, and that the custody decision is not contrary to the children's best interests. We affirm the judgment of the trial court.

Shawn R. Wilmoth ("the Buyer") approached Jimmy E. Holt about buying a building Mr. Holt owned jointly with his wife Betty L. Holt (collectively "the Sellers"). The Sellers advised they were only willing to sell the building if they could also sell the inventory from their lamp business that was stored in the building. The Buyer agreed to purchase the building and the inventory. The purchase of the inventory was accomplished through a promissory note in the amount of $250,000. Subsequently, the Buyer paid $150,000 toward the note but refused to pay the balance of $100,000. The Sellers filed suit to collect the balance owed on the note. In his answer and counterclaim, the Buyer alleged that Sellers represented the value of the goods to be $500,000, but that he only realized $65,000 through liquidation of the goods and that $65,000 was the true value of the inventory. The Buyer alleged that the figure he was given constituted an intentional misrepresentation and, when compared to the amount he recovered from the goods, amounted to a failure of consideration. The Buyer asked to recover damages that included the difference in the amount he paid on the note and the amount he realized out of the liquidation, that difference being $85,000. After a bench trial, the trial court determined that there was no intentional misrepresentation and dismissed the counterclaim. Nevertheless, the trial court refused to award the Sellers a recovery on the unpaid balance of the note. The court stated that it was leaving the parties where it found them. The Sellers appeal, raising issues; the Buyer, by way of his own issue, challenges the trial court's refusal to award him damages. We reverse and remand the case to the trial court with instructions to enter a judgment in favor of the Sellers and consider their prayer for prejudgment interest.

Stephen S. Patterson, II, filed a complaint against SunTrust Bank arising out of unauthorized charges made against his checking account with a debit card alleged to have been stolen. When SunTrust failed to timely respond to the complaint, Patterson moved for a default judgment. Following a hearing and the filing of briefs, the trial court granted the motion. The court later denied SunTrust's motion for relief from the court's order, which order recited that "[t]he plaintiff is granted a judgment by default." In the "judgment by default" order, the court had not addressed the plaintiff's request for damages. On a subsequent date, the case proceeded to a hearing on the issue of damages. At the conclusion of the hearing, the court awarded Patterson damages of $32,937.44. On appeal, SunTrust contends that the trial court erred in entering a default judgment and in failing to set aside that judgment. We vacate the trial court's final judgment. Case remanded for further proceedings.

This appeal concerns a billboard permit. The petitioner billboard owner applied to the respondent city for a permit to tear down and replace a grandfathered billboard. The city granted a permit for an indirectly illuminated billboard. The owner then built a billboard with a digital display face. The city revoked the owner’s permit because, inter alia, the sign actually constructed varied from the permit. The owner appealed to the city’s board of zoning appeals, which upheld the city’s revocation of the billboard permit. The billboard owner filed a petition for a writ of certiorari, seeking judicial review of the revocation. The trial court dismissed the billboard owner’s petition, finding that the city’s revocation of the permit was valid because the billboard erected by the owner was not covered by the permit. The billboard owner now appeals. We affirm.

Appellant/Father appeals from the trial court’s finding that he was in contempt for failure to pay child support. After reviewing the record, we find that the evidence preponderates against the trial court’s findings of fact. The trial court’s finding of contempt is reversed.

A Campbell County Criminal Court jury convicted the appellant, Clois Dean Asbury, of driving under the influence of an intoxicant (DUI), sixth offense, and violating the Tennessee implied consent law. On appeal, the appellant contends that (1) there was insufficient evidence to convict him on either count because he was not specifically identified in court, and (2) the trial court's admission of the appellant's medical records, which revealed the appellant had a blood alcohol content level of 0.26 percent, violated his right to confront witnesses against him. Upon review, we affirm the judgments of the trial court.

Mother and Father filed separate petitions to modify custody, both alleging a different material change of circumstances. The trial court entered a new parenting plan with custody provisions identical to those in a former parenting plan, but it failed to issue findings of fact and conclusions of law. Because the trial court failed to meet the requirements of Tennessee Rule of Civil Procedure 52.01, we vacate the judgment and remand for further proceedings.

Rachel M. Clawson ("the Decedent") was an employee of Summers-Taylor, Inc. ("the Employer") when she was killed in a tragic automobile-pedestrian accident. A vehicle driven by Michael Burrow veered off Highway 91 in Carter County and struck her. She had concluded her job duties for the day and was at the rear of her personally-owned truck visiting with co-workers and talking on a cell phone. The Decedent's truck was parked on the side of Highway 91 in an area approved by the Employer for employee parking. Michael Clawson and Sherry Clawson, the Decedent's parents ("the Parents"), filed this wrongful death action against Burrow and the Employer. The Employer filed a motion for summary judgment, arguing that on the undisputed facts the Decedent's death arose out of and occurred in the course and scope of her employment. The trial court agreed and entered an order granting the Employer summary judgment. The Parents appeal. We affirm.

Cole Bryan Howell, III ("the Grandson"), is the son of Cole Bryan Howell, Jr. ("the Father"), who in turn is the son of Margaret Lyons Howell ("the Grandmother"). The Grandson inherited stock in Howell Nurseries, Inc. ("the Nursery") through the Grandmother's will, which left a block of stock to the Father for life and then to the Father's children. After the Father's death, the Grandson filed this stockholder's derivative action against all persons who acted as directors of the Nursery and the Nursery itself ("the Defendants"), claiming, in essence, that the directors had sold away all of the corporate assets, leaving him with a rather hollow inheritance. The trial court held that the Grandson did not have standing to challenge any transactions that preceded the Father's death because it was only after his death that the Grandson became the owner of the stock. The trial court ordered an accounting as to all monies handled after the Father's death, which the Defendants filed with the court. Over the Grandson's objections, the trial court, on the Defendants' motion, approved the accounting and dismissed the case in its entirety. The Grandson appeals. We vacate the judgment of dismissal and remand for further proceedings.

The Defendant, Shannon Gene Taylor, appeals the revocation of his probation by the Circuit Court of Coffee County. The State has filed a motion requesting that this Court affirm the judgment of the trial court pursuant to Rule 20 of the Rules of the Court of Criminal Appeals. After our review, we grant the State's motion and affirm the judgment of the trial court.

Petitioner, Quantraveous Williams, appeals the post-conviction court's dismissal of his postconviction petition in which Petitioner alleged that he received the ineffective assistance of counsel in connection with the entry of his pleas of guilty and that his pleas of guilty were not entered into voluntarily or knowingly. After a through review, we affirm the judgment of the post-conviction court.

Shortly after a sixty-one year old woman signed a nursing home admission agreement, she fell and broke her ankle. She sued for negligence, and the defendant nursing home moved the court to compel her to bring her claim to arbitration in accordance with a separate agreement she had signed as a part of the admissions process. The trial court found that the arbitration agreement was a contract of adhesion and that it would be unconscionable to enforce it. The nursing home filed a direct appeal to this court pursuant to Tenn. Code Ann._ 29-5-319. Because the terms of the agreement favor the nursing home by giving it a judicial forum, we find the arbitration agreement unconscionable. Therefore, we affirm the trial court.

The defendant, Larquietta Taylor-Fisher, pled guilty in the Shelby County Criminal Court to DUI, first offense, a Class A misdemeanor; leaving the scene of an accident, a Class B misdemeanor; and three counts of reckless aggravated assault, a Class D felony, and was sentenced by the trial court to an effective sentence of two years, with thirty days to serve and the remainder of the time on supervised probation. In a timely appeal to this court, she argues that the trial court abused its discretion in denying her request for judicial diversion. Following our review, we affirm the sentencing determinations of the trial court.

In this post-divorce custody dispute, mother challenges the trial court's decision to change the primary residential parent to father. The trial court found mother's allegations of sexual abuse to be unfounded, and the evidence does not preponderate against the trial court's determination. We find no error in the trial court's modification of the primary residential parent or in its denial of mother's requests for post-judgment relief. We therefore affirm.

The petitioner, Jamie Bailey, appeals the denial of his petition for post-conviction relief from his three first degree murder convictions, arguing that he was denied the effective assistance of counsel and that his guilty pleas were therefore unknowing and involuntary. Following our review, we affirm the denial of the petition.

We granted this appeal to determine whether the admission into evidence of an automobile license tag number observed and written down by a bystander near the crime scene who did not appear at trial violated the defendant’s right to confrontation under the federal and state constitutions. A few seconds after being robbed at her place of employment, the victim ran out of the business, told a bystander that she had been robbed, and asked the bystander to observe the tag number of the vehicle operated by the man who had just left the business. The bystander did so and then came inside the store to write the number down for the victim. The victim added other descriptive information about the robber to the same piece of paper and then turned it over to the police. The tag number was traced to a vehicle owned by the defendant, whom a jury ultimately convicted of one count of robbery. The Court of Criminal Appeals reversed the conviction, holding that the written tag number was “testimonial hearsay” within the meaning of Crawford v. Washington, 541 U.S. 36 (2004), and Davis v Washington, 547 U.S. 813 (2006), and concluding that the statement’s admission was plain error. Based on our objective review of the circumstances surrounding the statement, we conclude that the written tag number was “nontestimonial hearsay” that did not implicate the defendant’s right of confrontation and was admissible as an excited utterance. We reverse the judgment of the Court of Criminal Appeals and reinstate defendant’s conviction.

This appeal involves subject matter jurisdiction over a petition for a writ of certiorari. The petitioner inmate was convicted of a disciplinary offense by the Department of Correction disciplinary board. The inmate timely filed a petition in the trial court, challenging the legality of the board's decision. The petition was not sworn. The respondent Department of Correction filed a motion to dismiss for failure to comply with the statutory verification requirement for such a petition. Subsequently, after the limitations period had lapsed, the petitioner inmate filed a motion to amend the petition to satisfy the verification requirement. The trial court found that it did not have subject matter jurisdiction to adjudicate the motion to amend and dismissed the petition. The petitioner now appeals. We affirm.

On August 10, 2001, Petitioner, Matthew Melton Jackson, pled guilty in Sumner County Circuit Court to four counts of aggravated robbery. The trial court sentenced Appellant to four, ten-year sentences to be served concurrently with each other, but consecutively to a previous sentence. On August 7, 2009, Petitioner filed a Petition for Post-conviction Relief arguing that a decision of this Court rendered after the entry of his guilty plea created a constitutional right that should be given retroactive application. Alternatively, he also argues that his incarceration in another state required a tolling of the statute of limitations. The postconviction court summarily dismissed his petition. After a thorough review of the record, we affirm the dismissal of his petition.

This appeal arises out of the disciplinary conviction of a prisoner for drug possession. The prisoner filed a petition for writ of certiorari with the chancery court seeking to review the actions of the prison disciplinary board. The chancery court issued the writ and determined that the prisoner was not entitled to relief. We affirm.

This is a dispute between two insurance companies, each of which provided liability insurance for a Captain D's restaurant in Mississippi. The defendant, Federal Insurance Company, provided the primary coverage for Captain D's with policy limits of $ 1,000,000. The plaintiff, Great American Insurance Company of New York, provided excess coverage for the benefit of Captain D's. When an action was filed against the insured in Mississippi for serious and permanent injuries sustained by a 15 year-old minor at a Captain D's, Federal provided the [*2] defense for Captain D's. The jury returned a verdict of $ 20.8 million against Captain D's. The next day, Federal sent a letter to its insured, Captain D's, and to the excess carrier, Great American, offering to pay its policy limits of $ 1,000,000 toward the judgment; however, Federal's "offer to pay" was not communicated to Foradori, the plaintiff in the Mississippi action. Federal appealed the $ 20.8 million Mississippi judgment on behalf of Captain D's, but the judgment was affirmed. Post-judgment interest of $ 2,269,169 accrued during the appeal. When the judgment became final, Federal paid its policy limits of $ 1,000,000, but no interest. Great American paid the balance of the judgment plus all of the post-judgment interest.

The defendant, Edward Garcia Summers, was indicted for possession with the intent to sell .5 grams or more of a substance containing cocaine, possession of marijuana, and possession of drug paraphernalia, all charges based upon evidence seized during a search of his residence. The defendant filed a motion to suppress the evidence, alleging that there was no probable cause to support the issuance of the search warrant. The trial court granted the defendant's motion, and the State now appeals. Upon review, we reverse the judgment of the trial court and remand for further proceedings.