APPELLATE COURT OPINIONS

This is a will contest. The decedent had three children, two daughters who survived her and a son who predeceased her. Two months before the decedent’s death, she executed a will that left all of her property to her daughters and some of their family members, but left nothing to any of the six children of the predeceased son. After the decedent’s death, one of the daughters sought to probate the will. The deceased son’s children filed this petition to contest the will, arguing that it was procured through undue influence. After a jury trial, the jury found that the will had not been procured through undue influence and was, therefore, valid. The son’s children now appeal the jury verdict. We affirm, concluding that the evidence in the record supports the jury verdict.

This appeal involves the termination of parental rights. The children were taken into protective custody after the mother was arrested for striking her three-year-old child in the face and fleeing from police. The children were found to be dependent and neglected and placed in foster care. After the children were removed from her care, the mother was repeatedly in and out of jail, with the last incarceration for stabbing her boyfriend in the back with a pair of scissors. When she was not in jail, she was largely unemployed and living with either relatives or a boyfriend. DCS filed a petition for termination of the mother’s parental rights on the grounds of abandonment by failure to establish a suitable home, abandonment by an incarcerated parent, substantial non-compliance with the permanency plan, and persistent conditions. After a trial, the trial court terminated the mother’s parental rights. The mother appeals, arguing that DCS did not make reasonable efforts at reunification, and that the termination of her parental rights is not in the children’s best interest. We affirm, finding that the evidence supports the trial court’s holding that DCS’s efforts at reunification were reasonable under the circumstances, and that termination of the mother’s parental rights is in the best interest of the children.

This is the second appeal in an annexation case involving two municipalities. The plaintiff smaller municipality passed an ordinance annexing adjoining property. The annexation was to be effective ninety days later. The annexed property also adjoined the defendant larger municipality. After the passage of the plaintiff’s annexation ordinance, but before its effective date, the defendant municipality passed an ordinance annexing the same property. The plaintiff then filed a declaratory judgment action, asking the court to find that the defendant’s annexation was invalid because it attempted to annex property that the plaintiff had already annexed. The trial court granted the defendant’s motion to dismiss and the plaintiff municipality appealed. In the first appeal, we reversed and the case was remanded to the trial court. The defendant then filed a second motion to dismiss, arguing, inter alia, that its greater population gave it annexation priority over the plaintiff under Tennessee Code Annotated § 6-51-110. The trial court denied the defendant’s motion, finding that the plaintiff’s annexation of the disputed property took place upon the passage of the ordinance after its final reading, not the effective date of the ordinance. Consequently, it found, the statute giving annexation priority to the larger municipality was not applicable because the defendant larger municipality did not initiate annexation proceedings until after the plaintiff had already annexed the property. The defendant now appeals. We reverse, finding that the effective date of the annexation, not the date of final passage, is the operative date by which a municipality with a larger population must initiate annexation proceedings in order to take advantage of its statutory priority.

The trial court terminated the parental rights of Ethel B. (“Mother”) and David B. (“Father”) to their son, Derrick B. (the “Child”), who was 11 at the time of trial. The trial court found, by clear and convincing evidence, that several grounds for terminating Mother’s and Father’s parental rights existed and that termination is in the best interest of the Child. Mother and Father appeal, challenging the trial court’s finding that clear and convincing evidence of grounds to terminate were established at trial. Mother and Father also challenge the trial court’s finding that clear and convincing evidence was presented that termination of the parents’ rights is in the Child’s best interest. We affirm.

This case addresses the allocation of funds received by a county from the Tennessee Valley Authority. The Tennessee Valley Authority is exempted from state taxation, but makes payments to the county in lieu of taxes. Historically, the county has earmarked these funds for education and has allocated a portion of them to the special school districts within the county. In 2003, however, the county decided to phase out the allocation of funds to the special school districts. Subsequently, the plaintiffs in this action, parents of children in a special school district located in the county, sued the county, arguing that the county’s decision to stop sending funds to the special school district violated several statutory provisions. The trial court granted summary judgment to the county. The plaintiffs now appeal. We affirm, concluding that the case is controlled by the decision in Oak Ridge City Schools v. Anderson County, 677 S.W.2d 468 (Tenn. Ct. App. 1984), and that the county is entitled to summary judgment.

In this appeal, we are asked to determine whether the trial judge erred by failing to exercise his role as thirteenth juror in denying Appellant’s motion for a new trial. In support of her argument, Appellant urges this Court to consider comments the trial judge made in ruling on Appellees’ motions for a directed verdict; the Statement of the Evidence, Response, Reply, and Surreply; and Appellees’ proposed order, in which the trial judge struck certain language. Appellees, however, contend that this material is either not properly reviewable by this Court or does not bear on the issue of whether the thirteenth juror standard was met. We reverse and remand for a new trial.

This is a premises liability case against the county. The plaintiff attended a football game at a county high school. She fell on the steps leading to the bleachers in the football stadium and suffered back injuries. She claimed that the step on which she fell was dented prior to her fall, and that this caused her fall. The plaintiff filed this action against the school district, alleging that it was negligent in failing to correct a dangerous condition or in failing to warn her about the dangerous condition on the school district’s property. The school district filed a motion for summary judgment, asserting that there was no genuine issue of material fact regarding the school district’s actual or constructive notice of the defective condition. Alternatively, it claimed that the school district was immune from suit under the GTLA. The trial court agreed with the school district and granted summary judgment based on both grounds. The plaintiff now appeals. We reverse and remand, concluding that the plaintiff submitted sufficient evidence to create a genuine issue of material fact on the issue of whether the school district had actual or constructive notice of a dangerous or defective condition, and that the school district is not immune from suit under the GTLA.

The Court in this case has reversed the holding of the Special Workers’ Compensation Appeals Panel that Mr. Trosper failed to prove that his preexisting osteoarthritis was permanently worsened by work he performed in the winter of 1997-1998. Based on a selective review of the evidence, the Court has concluded that Mr. Trosper is entitled to workers’ compensation benefits because his work “advanced the severity” of his osteoarthritis. I respectfully disagree that Mr. Trosper has carried his burden of proof in this case.

Following surgeries on both of his hands, the employee filed suit seeking workers’ compensation benefits on the theory that the repetitive nature of his work in the employer’s flooring business exacerbated a pre-existing, but dormant, arthritic condition. The trial court found that the employee’s work duties had worsened his osteoarthritis and awarded 40% permanent partial disability to each hand. The trial court also awarded temporary total disability benefits for the time during which the employee was recuperating from the surgeries and unable to work. The Special Workers’ Compensation Appeals Panel reversed the trial court, holding that the employee’s condition was neither caused nor aggravated by the work he performed for the employer. Because the evidence does not preponderate against the trial court’s finding of causation and the award of benefits, we reverse the decision of the Appeals Panel and affirm the judgment of the trial court.

This appeal involves the administration of an intestate estate. The respondent was appointed administratrix of her mother’s estate. She administered the estate with the help of an attorney. At the time of the decedent’s death, the decedent and the respondent owned a joint banking account with the right of survivorship. The respondent determined that the proceeds in the account passed directly to her upon the decedent’s death, and so she did not include it in the decedent’s estate. The respondent made a final distribution to the heirs of the estate, and the estate was closed. Subsequently, the petitioner, one of the decedent’s heirs and the respondent’s brother, filed a motion to reopen the estate. He alleged that the respondent and her attorney mismanaged the estate and violated his claimed right to a portion of the decedent’s joint checking account. The trial court reopened the estate and appointed a successor administrator. After a hearing, the trial court granted the petitioner’s claim to some additional distribution, but determined that the petitioner was not entitled to a portion of his mother’s joint checking account. The petitioner now appeals. Because all of the petitioner’s claims were not adjudicated by the trial court, we dismiss the appeal for lack of jurisdiction.

In this appeal, we are asked to determine whether Express Disposal had a legal, vested right to conduct its garbage collection business for residences in Berryhill prior to its annexation by the city of Memphis, such that Memphis’ exercise of its exclusive right to provide municipal services in Berryhill constituted a taking of Express Disposal’s property rights without just compensation in violation of Article I, section 21 of the Tennessee Constitution. We find that Memphis’ takeover of residential garbage collection in Berryhill did not amount to a constitutional taking, such that Express Disposal was entitled to compensation. Thus, we affirm the circuit court’s dismissal of Express Disposal’s claim for failure to state a claim upon which relief could be granted.

Defendant pled guilty to three counts of forgery, one count of theft of less than $500, and two counts of failure to appear. Following a sentencing hearing, the trial court sentenced Defendant as a career offender to six years on each count of forgery to be served concurrently with each other and six years on each count of failure to appear to be served concurrently with each other, but consecutively to the sentence for the forgery convictions. Defendant was sentenced to eleven months, twenty-nine days for the theft under $500 to be served concurrently to the other sentences. These sentences were then run consecutively to the nine year sentence Defendant was already serving. On appeal, Defendant argues that the sentence is excessive and contrary to law. After a thorough review of the record, we affirm the judgments of the trial court.

The defendant, Britt Alan Ferguson, was convicted by an Obion County jury of facilitation of the initiation of a process intended to result in the manufacture of methamphetamine, a Class C felony; two counts of promotion of the manufacture of methamphetamine, a Class D felony; unlawful drug paraphernalia use and activities, a Class A misdemeanor; and two counts of possession of a controlled substance, a Class E felony;1 and was sentenced by the trial court as a multiple offender to an effective sentence of six years in the Department of Correction. Following the denial of his untimely motion for new trial, he filed an untimely notice of appeal to this court, challenging the sufficiency of the evidence in support of his methamphetamine and drug paraphernalia convictions and arguing that the trial court erred in denying his motion to suppress evidence. The State responded with a motion to dismiss on the basis that both the motion for new trial and notice of appeal were untimely. This court granted the motion in part, ruling that the defendant had waived the suppression issue by his untimely motion for new trial but that we would waive the untimely notice of appeal in order to consider the sufficiency of the convicting evidence. Following our review, we conclude that the evidence is sufficient to sustain the convictions. Accordingly, we affirm the judgments of the trial court.

In this appeal, we are asked to determine whether the chancery court erred in failing to allow Appellant to proceed with discovery after the State of Tennessee filed its Motion to Dismiss, in dismissing Appellant’s Complaint and Amended Complaint based solely on argument, without any proof by testimony or documentation, and in dismissing Appellant’s Complaint and Amended Complaint in regards to BellSouth which did not file a motion to dismiss or present evidence or documentation prior to the court’s dismissal. On appeal, Appellant contends that it was entitled to proceed with discovery before the court ruled on the State’s motions. Likewise, Appellant argues that the State should have been required to prove ownership of an easement right of way over Appellant’s property. Finally, Appellant contends that because BellSouth filed only a Notice of Appearance, Appellant’s claim against BellSouth should not have been dismissed. We affirm the trial court’s dismissal.

The defendant, Von Arlen McKinney, was convicted of driving under the influence (DUI), third offense; driving on a revoked license, fourth offense; possession of drug paraphernalia; and violation of the implied consent law. He was sentenced to eleven months and twenty-nine days at seventy-five percent for his DUI offense; eleven months and twenty-nine days for driving on a revoked license, to run concurrent to the DUI; eleven months and twenty-nine days for possession of drug paraphernalia, to run concurrent to the other sentences; and eleven months and twenty-nine days for violation of the implied consent law, with five days to run consecutive to his other sentences, for a total effective sentence of eleven months and thirty-four days. On appeal, the defendant argues that the evidence was insufficient and that the sentence imposed was excessive. After careful review, we affirm the judgments from the trial court.

In this divorce proceeding, Wife appeals the trial court’s decision not to enforce the parties’ Marital Dissolution Agreement, the trial court’s distribution of the marital assets, and the trial court’s failure to sanction Husband for failure to comply with the discovery rules. After Wife filed for divorce, the parties executed a Martial Dissolution Agreement. The trial court, however, refused to enforce the Marital Dissolution Agreement because some of Husband’s property was damaged while within Wife’s exclusive control. The trial court admitted as evidence Wife’s attorney’s statement that he would not permit Wife to damage husband’s property. We affirm that attorney’s statement was properly admissible parol evidence and the trial court properly denied Wife’s motion to enforce the Martial Dissolution Agreement.

Wife also argues that the trial court failed to equitably distribute the marital assets and that the court erred by failing to sanction Husband for discovery violations. This Court affirms the trial court’s division of marital assets, as modified, and its order denying Wife’s request for sanctions.

Memorandum Opinion - This is an appeal from an order of the trial court granting a motion for summary judgment filed by Lasalle Bank National Association (Lasalle Bank).  The appeal is dismissed. 

This appeal arises from a dispute between an employee and employer over life insurance coverage under a group insurance policy. The facts of this case are relatively straightforward; the procedural history, however, is surprisingly complicated. Ultimately, we dismiss for lack of a final judgment and remand to the trial court.

A Hamilton County jury convicted the petitioner, Michael S. Powell, of count one, first degree felony murder, with the underlying felony being aggravated child abuse, and of count two, aggravated child abuse. The trial court sentenced him to concurrent sentences of life in prison for the murder conviction and twenty years for the aggravated child abuse conviction. The petitioner filed a petition for post-conviction relief claiming that he received the ineffective assistance of counsel. After a hearing, the post-conviction court dismissed the petition. The petitioner appeals that dismissal, contending that his trial counsel was ineffective for failing to request that a mental evaluation be conducted on the petitioner. Finding no error, we affirm the judgment of the post-conviction court.

This appeal concerns the value of property taken by the City of Memphis under its eminent domain power. The condemned land was subject to a leasehold interest held by the Appellant. The Appellant used the land as a site for a billboard, which it rented to advertisers. After taking possession of the land, the City compensated the owner, but not the Appellant. Appellant sought compensation for its property interest, and designated an expert witness to offer proof on its value. The City objected to the expert’s methodology, and asked the trial court to exclude his testimony. After an evidentiary hearing, the trial court ruled that the expert’s methodology was prohibited by this Court’s decision in State ex rel. Comm’r v. Teasley, 913 S.W.2d 175 (Tenn. Ct. App. 1995). Without the expert’s testimony, Appellant could not present proof on the value of its property interest and accordingly, the trial court entered a judgment for the City. Finding that the trial court erred when excluding Appellant’s expert, we reverse.

Following her guilty plea to facilitation of robbery and a sentencing hearing in the Sullivan County Criminal Court, the defendant, Katrina M. Everhart, appeals that court’s decision to order her three year sentence to be served in the Department of Correction. She claims on appeal that the criminal court erroneously denied her alternative sentencing. We affirm the judgment of the criminal court.

The defendant, Bobby Gene Walker, Jr., appeals his conviction for second offense DUI. The defendant claims there was insufficient evidence presented to the jury to sustain a verdict of guilt beyond a reasonable doubt. After complete review, we affirm the judgment from the trial court.

A Davidson County jury convicted the defendant, Melvin L. Taylor, of one count of aggravated kidnapping and one count of attempted aggravated rape, both Class B felonies, and one count of aggravated assault, a Class C felony. The defendant received a total effective sentence of 30 years in the Department of Correction. On appeal, the defendant asserts that the evidence produced at trial was insufficient to sustain his aggravated kidnapping conviction. After reviewing the record, we affirm the judgments of trial court.

The petitioner, Henry Ford Williams, Jr., appeals from the denial of his 2006 petition for  post-conviction relief, which challenged his 2002 convictions of possession with the intent to sell .5 grams or more of cocaine within 1,000 feet of a school zone and of simple possession of  cocaine. He asserts that he was denied the effective assistance of counsel at trial and that he was denied due process because the jury pool was racially imbalanced. Finding that the petitioner has failed to show by clear and convincing evidence that counsel was ineffective and that the petitioner has waived his due process claim, we affirm the judgment of the post-conviction court.

This appeal involves an order entered by an Alabama court in 1996 regarding child custody and support. The trial court modified the order to require the father to pay future and retroactive child support. We vacate the portion of the order dealing with modification, because the trial court lacked jurisdiction to modify the order, and remand for further proceedings.