author: JAMES M. SMART, JR., Judge.

text:
    AUTUMN RIDGE HOMEOWNERS ASSOCIATION, INC., Appellant, v. Frank Joseph OCCHIPINTO, Jr., et al., Respondents.
    No. WD 71122.
    Missouri Court of Appeals, Western District.
    June 8, 2010.

      Rod Hoffman, Kansas City, MO, for appellant.
    Jeffrey S. Eastman, Gladstone, MO, for respondent.
    Before LISA WHITE HARDWICK, P.J, JAMES M. SMART, JR., and ALOK AHUJA, JJ.
   JAMES M. SMART, JR., Judge.

The Autumn Ridge Homeowners Association appeals the trial court’s judgment in favor of Frank and Carmeline Occhipinto on its claim for past-due homeowner’s dues, interest, and attorneys’ fees. The Association contests the trial court’s denial of its “motion to amend” to correct the language of the judgment. For the reasons set forth below, the appeal is dismissed because the issue raised is moot.

Background

On August 5, 2008, Autumn Ridge Homeowners Association, Inc., (“the Association”) filed its petition seeking a money judgment against Frank and Carmeline Occhipinto. The Association averred that it was authorized under the “Declaration of Covenants, Conditions, and Restrictions” of the homeowners’ association for Autumn Ridge Subdivision to implement and collect assessments and fees from homeowners in that subdivision. The Association alleged that the Occhipintos were the owners of Lot 149, Autumn Ridge— . Fourth Plat, located within the subdivision, and were liable for their share of the assessments and fees due. It further alleged that as of April 17, 2008, the Occhipintos owed $2,179.30 in past-due homeowners’ dues, interest, and attorneys’ fees. The petition stated that the Association was “entitled to” a lien against the property. The Association prayed for judgment against the Occhipintos for the amount owed. Because the petition was filed in the Associate Division, the Occhipintos did not file an answer.

On May 5, 2009, at a bench trial, the Association presented testimony from the property manager for the Autumn Ridge subdivision and introduced several exhibits into evidence. Those exhibits showed that the Occhipintos’ property was situated within the Fourth Plat. The Occhipintos’ attorney pointed out, however, that the exhibits did not show that the Fourth Plat was encumbered by the Association’s Declaration of Covenants and Restrictions.

After conferring with his witness, counsel for the Association moved for permission to dismiss the case without prejudice. The court denied the request to allow a dismissal without prejudice. Counsel proceeded. The Occhipintos again' objected that “there’s nothing to establish that this property is encumbered by the declarations, covenants and any assessments that may be levied as a consequence thereof.” Upon inquiry by the court, counsel for the Association conceded that he could not establish that the Occhipintos’ property was encumbered by the Declaration’s restrictions.

The Occhipintos did not present any evidence. The court ruled in favor of the Occhipintos at the conclusion of trial. Neither party requested findings of fact and conclusions of law. The court’s Judgment of May 7, 2009, included the following findings:

1. Plaintiff Autumn Ridge Homeowners Association, Inc., is a Missouri non-for-profit corporation in good standing.
2. Pursuant to Plaintiffs Declaration of Covenants, Conditions and Restrictions it performs various duties including implementing and assessing and collecting fees and other obligations from homeowners within its jurisdiction.
3. Defendant Frank and Carmeline Oc-chipinto are owners of real property legally described as all of Lot 149, Autumn Ridge — Fourth Plat, a subdivision in Kansas City, Platte County, Missouri.
4. Defendant’s real property, Lot 149, Autumn Ridge — Fourth Plat, is situate beyond the authority and jurisdiction of Plaintiff and its Declarations of Covenants, Conditions and Restrictions and is thus not encumbered by the same.
5. Any assessment of fees, dues, costs or other obligations by Plaintiff against the real property legally described as Lot 149, Autumn Ridge— Fourth Plat is void and of no effect.
6. Defendants Frank and Carmeline Occhipinto have no personal obligation for any fees, dues, costs or other obligations sought by Plaintiff.

(Emphasis added.) The judgment also denied the Association any lien against the property.

The Association filed a “motion to amend the judgment,” in which it sought to strike paragraphs 4 and 5. The Association attached a copy of the “Declaration of Annexation” that it failed to present at trial, purportedly showing that the Fourth Plat was subject to encumbrance by the Association’s Declarations.

At a hearing on the motion, the Association first argued that paragraphs 4 and 5 should be stricken because they contradict the public record. The Association attempted to present a copy of the Fourth Plat annexation document (evidently to show that the Fourth Plat was encumbered by the Association’s Declaration of Restrictions). The Occhipintos objected on the basis that it was not admitted at trial. The trial court declined to admit the document. The Association also argued that the paragraphs went beyond the pleadings because the Occhipintos sought no affirmative relief at trial, such as an action to quiet title or to remove a lien. The Association’s final argument was that the language had the effect of “excluding Lot 149 from the operations of the homes association,” to the disadvantage to a successor purchaser, in that it

creates a potential cloud on their title, because those owners want, most likely, the benefits of the homes association, the amenities ... as well as the benefits of the restrictive covenants!)]

The court denied the motion to amend on the basis that there was no evidence presented at trial to the effect that Lot 149 was included in the land bound by the declarations.

The Association appeals.

Standard of Review

A trial court “is vested with considerable discretion in ruling on a motion to amend judgment[.]” Am. Fam. Mut. Ins. Co. v. Mo. Dep’t of Ins., 169 S.W.3d 905, 914 (Mo.App.2005). We will not reverse the denial of a motion to amend judgment absent an abuse of that discretion. Id.

Discussion

The Association argues on appeal that the court erred in its judgment and in denying the motion to amend the judgment to strike paragraphs 4 and 5. The Association complains that the court’s “voluntary” findings in those paragraphs are “gratuitous only,” in that neither party requested findings of fact or conclusions or law. The Association also contends that the two paragraphs are unsupported by the evidence and provide relief to the respondents beyond the scope of the pleadings or any evidence presented at trial. See, e.g., Brock v. Blackwood, 143 S.W.3d 47 (Mo.App.2004) (“[A] trial court cannot enter a judgment on a cause of action not pleaded.”). For these reasons, the Association concludes, “paragraphs 4 and 5 ... must be reversed or stricken from the judgment.” The Association asks this court to remand to the trial court with instructions to amend the judgment to strike the paragraphs.

The Association’s underlying concern is that the language in paragraphs 4 and 5 will have a preclusive effect so as to exclude Lot 149 (and perhaps, the Association fears, other homes in the Fourth Plat) from the jurisdiction of the homes association. The Association contends that this could potentially create confusion and disadvantage the property owner, or any successor purchaser of the property, by creating a potential cloud on their title and by excluding them from the benefits and amenities of the homes association, and the restrictive covenants.

Threshold Question: Mootness

The Association concedes in its brief that it failed to establish that it was entitled to recover homes association dues from the defendants. The Association does not argue that the court erred in finding for the Occhipintos on its claim for unpaid past-due fees. The Association’s sole claim of error relates to the trial court’s “gratuitous” inclusion of paragraphs 4 and 5 in the judgment and its refusal to modify or correct the judgment as to that language.

As a threshold matter, the facts here raise the question of whether the Association is entitled to appeal incidental language in a judgment when not appealing the actual outcome of the case. In other words, can one appeal the court’s incidental findings when not appealing the judgment itself? The answer, generally, is that one cannot:

A finding of fact precedes judgment and constitutes an opinion for the ground of judgment, but it is not a final determination of the rights of the litigants in the subject matter of the action. Only a judgment is that[.] The efficacy of judgment, therefore, does not reside in any prefatory statement of reason or recital but in the mandate of the decree.

In re Marriage of Clark, 3 S.W.3d 402, 404 n. 1 (Mo.App.1999) (citations omitted). When there is confusion arising out of the superfluous wording of a judgment, resort may be had to the record to determine the true mandate of the judgment. When the mandate is discernible, an appeal of the judgment will generally be unnecessary.

With that principle in mind, we must consider the issue of mootness. “The mootness of a controversy is a threshold question, in any appellate review of that controversy.” State ex rel. Chastain v. City of Kansas City, 968 S.W.2d 232, 237 (Mo.App.1998). “With regard to justiciability, a case is moot if a judgment rendered has no practical effect upon an existent controversy.” Id. “The existence of an actual and vital controversy susceptible of some relief is essential to appellate jurisdiction.” Hall v. Mo. Bd. of Prob. & Parole, 10 S.W.3d 540, 545 n. 3 (Mo.App.1999). “We do not decide questions of law disconnected from the granting of actual relief.” Chastain, 968 S.W.2d at 237.

Paragraphs 4 and 5 could be considered surplusage. “A conclusion that exceeds the determination required to dispose of a claim is considered gratuitous surplusage.” Craft v. Philip Morris Cos., 190 S.W.3d 368, 377 (Mo.App.2005). Various cases say that irrelevant, superfluous, or overly broad incidental findings do not require reversal if the judgment is otherwise supported by the evidence. See, e.g., Land Clearance for Redevelopment Auth. of City of St. Louis v. Zitko, 386 S.W.2d 69, 82 (Mo.1964); State ex rel. City of Lee’s Summit v. City of Lake Lotawana, 220 S.W.3d 794, 809 (Mo.App.2007).

In this case, the sole issue on appeal is the inclusion of language that the Association says is surplusage. Generally, findings that are mere surplusage “do[ ] not present an issue for review by this court.” See Engeman v. Engeman, 123 S.W.3d 227, 241 (Mo.App.2003). “On appeal, points of error relating to separable, excess legal conclusions are moot.” Craft, 190 S.W.3d at 378. “They do not present an issue for appellate review because any opinion addressing surplus conclusions would be merely advisory.” Id. (citations omitted). We do not render advisory opinions or decide nonexistent issues. Id.; In re Estate of Looney, 975 S.W.2d 508, 519 (Mo.App.1998). Here, only the “surplus-age” is being appealed. In the absence of any actual controversy, an appeal is moot and should be dismissed. See Chastain, 968 S.W.2d at 237.

Generally, if comments are superfluous, the matter is moot because there is no collaterally preclusive effect to the judgment; if they are not superfluous, then they are part-and-parcel of the issue properly decided by the court, and the language cannot be separately appealed without appealing the judgment. Either way, the appeal is subject to dismissal.

Here, we recognize that the comments included in paragraphs 4 and 5 of the judgment were effective, for purposes of res judicata, to bar any further attempt at proceeding against the Occhipintos for the recovery sought in the Association’s petition. At the same time, the broad comments can have no collaterally preclu-sive effect as to the status of the property itself because the record shows that neither party affirmatively proved anything about declarations and covenants that might be affecting the property in question. The Association’s claims in this case simply failed for lack of proof. While the trial court’s judgment could have been better stated had it avoided using language suggesting an affirmative finding that the property was not subject to the declarations, the fact remains that, in the event that any confusion ensues about the effect of the judgment, the trial record and transcript may be employed to clarify the actual determination of the trial court.

Conclusion

The sole issue on appeal (whether the court should have modified the judgment in this case to more accurately express the actual factual findings) is moot. We dismiss the appeal.

All concur.

      . The Occhipintos were not required by Associate Division procedures to file an answer.
      The allegations in the petition were deemed denied. See section 517.031.2.

      . The petition had alleged in Paragraph 11 that: "[The Association] has complied with all forms of law and is entitled to a lien on and against said property,” referring to Lot 149, Autumn Ridge — Fourth Plat.

      . We gather from the record that it was not clear to the trial court at that time that the motion sought merely to modify the judgment to eliminate the specific finding that Lot 149 was not encumbered by the Association's declarations, as opposed to a finding that the Association simply had not proven such encumbrance.

      . Under a narrow "public interest” exception, "a court has discretion to review a moot case when the case presents an unsettled legal issue of public interest and importance of a recurring nature that will escape review unless the court exercises its discretionary jurisdiction.” Chastain, 968 S.W.2d at 237. That exception does not apply here.

      . A related principle is that an appealing party must be aggrieved by the matter being appealed. In Carondelet Savings & Loan Association v. Boyer, 645 S.W.2d 24, 27 (Mo.App.1982), the reviewing court was asked to rule on findings of fact that "purported to pass on the legal rights of a non-party.” That court declined to review the findings, because the trial court's "volunteered expressions of opinion” could "form no basis for collateral estoppel or res judicata." Id. See also the discussion at Wright v. Rankin, 109 S.W.3d 696, 699 (Mo.App.2003), to a similar effect.


source: Caselaw Access Project

author: SHARON G. LEE, J.,

license: Public Domain

text:
    STATE of Tennessee v. Benjamin BROWN.
    Supreme Court of Tennessee, at Jackson.
    Nov. 5, 2009 Session.
    May 27, 2010.

      William D. Massey and Loma S. McClusky, Memphis, Tennessee, for the appellant, Benjamin Brown.
    Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; J. Ross Dyer, Senior Counsel; William L. Gibbons, District Attorney General; and John Wheeler Campbell, Assistant District Attorney General, for the ap-pellee, State of Tennessee.
   OPINION

SHARON G. LEE, J.,

delivered the opinion of the Court,

in which JANICE M. HOLDER, C.J., CORNELIA A. CLARK, GARY R. WADE, and WILLIAM C. KOCH, JR., JJ., joined.

The defendant was convicted of aggravated child abuse and felony murder in the perpetration of aggravated child abuse. The defendant appealed the felony murder conviction, and the Court of Criminal Appeals affirmed his conviction. We granted permission to appeal and address the issue of whether the trial court committed reversible error by failing to instruct the jury on the lesser-included offenses of felony murder, which include second degree murder, reckless homicide, and criminally negligent homicide. We conclude that the trial court erred by failing to instruct the jury as to these lesser-included offenses, and accordingly, we reverse the felony murder conviction and remand the ease for a new trial on the felony murder count.

Factual and Procedural Background

The first marriage of Benjamin Brown (“the defendant”) and Tammy Huff was very brief. They were wed on April 26, 1994, at the home of Ms. Huffs parents in Hernando, Mississippi. On the evening of the wedding, Ms. Huffs father received an anonymous telephone call from a woman who claimed that the defendant was the biological father of her children. Upon learning this information, Ms. Huff, who was pregnant with the defendant’s child, left the defendant and later divorced him.

On September 16, 1994, Ms. Huff gave birth to a daughter, Ashley Denise (“Ashley”), and they resided with Ms. Huffs parents in Hernando until the summer of 1996. For about twenty months, the defendant had no contact with his ex-wife and daughter. However, in May of 1996, Ms. Huff and the defendant began seeing each other again and reconciled. On July 12, 1996, they remarried. On August 2, 1996, the defendant, Ms. Huff, and Ashley moved into an apartment in Memphis.

The second marriage was troubled. On September 12,1996, after only two months of marriage, Ms. Huff decided to leave the defendant. She called her parents and told them she wanted to return home. The defendant, after overhearing Ms. Huffs telephone conversation, became angry and according to Ms. Huff, “like started choking me.” Ms. Huff got away from the defendant and began packing. She testified that when she told the defendant that she was leaving him because he was “mean” and she didn’t trust him, his “eyes like turned red, and ... he started coming after me.... ” Ms. Huff testified that the defendant then placed a knife at her throat and said, “If you leave me, you know, I can, you know, I can kill you. I don’t have anything to lose.” When the defendant demanded that Ms. Huff call her parents back and tell them she had changed her mind about coming home, she did so because the defendant “was threatening me and I was scared.”

The next morning, the defendant drove Ms. Huff and Ashley to Ashley’s daycare center. After Ms. Huff took Ashley into the center, the defendant drove Ms. Huff to her job and then went to his own place of employment. At or around 12:30 p.m., the defendant picked up Ashley from the daycare center. The director of the center, who had worked with Ashley on a daily basis during the several weeks Ashley had been in attendance, testified that Ashley was “perfectly well” when she left the center that day. The director said that she never had any indication that Ashley was the victim of child abuse during the weeks Ashley had been in her care.

Ashley and the defendant were together the rest of that afternoon. The defendant testified that they went to a 4:30 p.m. appointment at an insurance company and then to the home of his cousin. While the defendant and Ashley were at the cousin’s house, the cousin said Ashley played with a child from next door and appeared to be all right and that the defendant was “cheerful, laughing” and “in good spirit.” The cousin also said that he had known the defendant all of his life and had never seen him scold or whip a child. At or around 6:00 or 6:30 p.m., the defendant bought some fast food, and he and Ashley went to Ms. Huff’s workplace where the three ate dinner together in the car. Ms. Huff returned to work, and the defendant and Ashley returned to the family’s apartment.

At or around 8:00 p.m., Rita Griffin, who resided across the hall from the defendant, was returning to her apartment. The apartments were accessed by an outside metal and concrete stairway, and, as Ms. Griffin reached the top of this stairway, she saw the defendant leaving his apartment with Ashley on his left shoulder. She spoke to him briefly before entering her apartment and did not notice anything unusual about the defendant or Ashley at this time. Ms. Griffin was unable to see Ashley’s eyes at this time, as Ashley did not raise her head from the defendant’s shoulder and appeared to be asleep.

The defendant testified that after meeting Ms. Griffin and as he went down the stairway, he realized that he had left his keys in his apartment. When he returned to the apartment, he left Ashley alone on the landing outside the door while he went inside. The defendant maintains that when he came out of the apartment about a minute later, he saw Ashley lying at the bottom of the stairway.

Meanwhile, immediately after entering her apartment, Ms. Griffin made a telephone call but was interrupted after approximately two minutes by someone beating on her door. When she asked who was at her door, the defendant identified himself and said, “My baby has fallen down the stairs.” Ms. Griffin opened the door to the defendant, whom she described as appearing “very upset.” He entered her apartment with Ashley in his arms. She was not moving. Ms. Griffin stated that the defendant was “rocking [Ashley] like ‘Ashley, Ashley, wake up.’” He told Ms. Griffin that he had set Ashley on the steps and had gone back into the apartment to get his keys and that when he came out of the apartment, Ashley “was on the ground. She had fallen down the steps.” Ms. Griffin dialed 911 for medical assistance, and while she was speaking to the 911 operator, the defendant was shaking Ashley “like ‘Ashley, Ashley, please wake up....’” The 911 operator advised Ms. Griffin to tell the defendant to stop shaking Ashley and to lay her down and keep her warm. Ms. Griffin testified that Ashley “was unconscious and her eyes were kind of trying to open and she was gasping for breath, but she couldn’t really get her breath.” Ms. Griffin was able to see Ashley’s legs and arms and did not notice any abrasions, bruises, or blood on her. After laying Ashley down on the floor, the defendant began attempting to perform cardiopulmonary resuscitation on her. Paramedics arrived and transported Ashley to LeBonheur Hospital, where she was admitted to the emergency room and later to the intensive care unit. Over the next several hours, Ashley’s neurologic condition deteriorated, her brain ceased to function, and at 11:55 p.m. on September 15, 1996, she died of heart and lung failure.

On December 19, 1996, a Shelby County Grand Jury returned two indictments charging the defendant with one count of aggravated child abuse in violation of Tennessee Code Annotated section 39-15-402 ; one count of first degree murder in the perpetration of aggravated child abuse in violation of Tennessee Code Annotated section 39-13-202(a)(2); and one count of premeditated first degree murder, in violation of Tennessee Code Annotated section 39-13-202(a)(l). The case was tried by a jury from April 26 through April 30, 1997.

At trial, Dr. Jeffrey Schmidt, the pediatric intensive care physician who treated Ashley in the intensive care unit, testified that he observed “[n]o scratches, bruises, bumps, no swelling, no cuts” but that she was suffering from “severe neurologic devastation, severe brain injury.” He stated that brain injury is evaluated according to the Glasgow Coma Scale, an objective standard for measuring brain function along a continuum which begins at three, indicating no brain function, and ends at fifteen, indicating normal brain function. According to Dr. Schmidt, Ashley scored only four on this scale. He attested that a computerized axial tomography (CT) scan of Ashley’s brain showed no abnormality but that she exhibited retinal hemorrhages in the backs of her eyes and that this combination of symptoms was consistent with “acceleration-deceleration syndrome,” commonly referred to as “shaken baby syndrome.” He further explained as follows:

The brain sits in a fluid filled sac called the dura. And especially in little children and babies, the ability for the brain to move within that sac is far more than adults. In fact, in adults it doesn’t move much at all. In babies it can move enough that the connections between the brain and the dura, the tiny blood vessels can get sheared. The other — the nerve fibers, too, and the nerve cells can get sheared if there’s a sudden impact or acceleration-deceleration force. And then that’s also the same explanation for the tiny vessels in the back of the eye. Because of a sudden acceleration-deceleration force, these tiny vessels get ruptured and cause the bleeding, the hemorrhages in the back of the eye.

Dr. Schmidt testified that the only other circumstances that produce the injury exhibited by Ashley are “major trauma like high-speed motor vehicle accidents ... [or] falls from extreme heights” such as from “three or four-story windows” or “off of ... 50-foot cliffs.” Dr. Schmidt denied that a fall down a flight of thirteen stairs, the number of stairs from the landing of the defendant’s apartment to ground level, would have generated sufficient force to produce Ashley’s injury, which would have required “much higher speeds of acceleration and much greater impact for deceleration.” He denied that the defendant’s shaking of Ashley after he brought her into Ms. Griffin’s apartment would have created sufficient force to cause Ashley’s injury. Dr. Schmidt described the kind of shaking necessary to generate such force as “extreme, severe, out of control.” He further testified that “retinal hemorrhage would not [be] see[n] from a fall down the stairs” and that if Ashley had fallen down the aggregated concrete and metal steps, he would expect to have found “either bruising, bleeding, cuts, abrasions, something that would show that her head struck ... the step or ... some evidence of external trauma.” Dr. Schmidt stated that, given the absence of external injury to Ashley’s head, “the only thing that would achieve that degree of neurologic injury is the shaking that would cause the severe damage to the brain cells.” Dr. Schmidt was unable to say whether shaken baby syndrome symptoms could result if a child fell directly on its head from a sufficient height but speculated that the syndrome could result “if a patient fell and they landed on their butt first, but their head snapped, ... if the acceleration was high enough and the impact was high enough.”

Forensic pathologist Dr. Wendy Gunther testified that she performed an autopsy of Ashley’s body on the day following her death. Upon examining Ashley’s eyes and brain, Dr. Gunther discovered that there was bleeding at the backs of the eyes and determined that when Ashley died, all of her brain neurons were either dying or already dead. The doctor discovered no abrasions, lacerations, or fractures. She found “a tiny scar” on Ashley’s left arm “with five, tiny white dots like some animal might have bitten her” and a small bruise on the back of her left arm. Finally, upon opening the skin of Ashley’s buttocks, Dr. Gunther discovered severe bruising which resulted in bleeding throughout the subcutaneous fat. Although the defendant attested that he had never spanked Ashley and Ms. Huff admitted that she had no knowledge that he had ever “spank[ed] or beat or mistreat[ed]” Ashley, Dr. Gunther described this bruising as “consistent with somebody having struck [Ashley] repeatedly on the buttocks.” However, she also conceded that the bruising could have been caused by “a very unusual fall, if the child managed to fall so that from the small of her back to the area where her buttocks turn under and side to side, all hit some surface at the same time.” Dr. Gunther found no pattern bruising on Ashley’s buttocks and noted that “sometimes when a child is struck or whipped by a parent you see pattern bruises,” stating that pattern bruises are quite common when a child was struck on the naked buttocks but more unusual if the child was dressed when struck. She explained that the external evidence of this severe bruising of the buttocks had been very hard to see because of Ashley’s dark brown skin and because, after death, when a body is face up, blood collects in the back, causing everything to have a dark red appearance.

Based upon the information obtained from the autopsy, Dr. Gunther opined that “the only thing that could have killed [Ashley] is shaken baby syndrome.” Dr. Gunther noted that in order to cause shaken baby syndrome, “you must shake the baby so hard that the baby’s head whips back and forth and the axons of the neurons break.” She stated that shaken baby syndrome is much more common in small babies and that to cause it in a child of Ashley’s age, “you would have to shake [the child] extremely hard.”

During trial, the State conceded that the count of premeditated first degree murder was not supported by the evidence, and that count was dismissed. At the close of proof, in discussion with the parties’ attorneys outside the presence of the jury, the trial court indicated that because the first degree premeditated murder count had been dismissed, it was not necessary to charge the jury on second degree murder as a lesser-included offense, stating “[o]nce you’ve knocked out murder one, then your second (degree) and everything went away.” Counsel for the State voiced concern that the trial court might be required to charge the jury on criminally negligent homicide as “a lesser grade of homicide ... even though it may not be a lesser-included [offense].” The trial court then deferred to the defendant’s attorney who declined a request for a charge of criminally negligent homicide.

At the conclusion of closing arguments, the trial court charged the jury as to the offense of aggravated child abuse, the lesser-included offense of child abuse through injury of a child six years or less, and the offense of first degree murder in the perpetration of aggravated child abuse. The trial court did not instruct the jury as to any lesser-included offenses of felony murder.

The jury found the defendant guilty of aggravated child abuse and first degree murder in the perpetration of aggravated child abuse, and the defendant received a sentence of imprisonment for life for the felony murder conviction and a concurrent sentence of twenty-five years for the aggravated child abuse conviction. The defendant appealed the convictions to the Court of Criminal Appeals. Finding that the defendant had not filed a timely motion for new trial, the Court of Criminal Appeals held that it was without jurisdiction to hear any issues stemming from the felony murder conviction other than the issue of sufficiency of the evidence, which was found to be sufficient to support the conviction. State v. Brown, No. W1999-00327-CCA-R3-CD, 2000 WL 1664226, at ⅜6, *8-9 (Tenn.Crim.App. Oct. 24, 2000). The Court of Criminal Appeals dismissed the conviction for aggravated child abuse, concluding that the convictions for aggravated child abuse and felony murder committed in the perpetration of aggravated child abuse violated constitutional protections against double jeopardy. Based on our decision in State v. Godsey, 60 S.W.3d 759 (Tenn.2001), we concluded that dual convictions for aggravated child abuse and felony murder were permissible and did not violate protections against double jeopardy. We remanded the case to the Court of Criminal Appeals for review in light of our decision in Godsey, whereupon the intermediate appellate court affirmed the conviction for aggravated child abuse. State v. Brown, No. W1999-00327-CCA-R3-CD, 2002 WL 1869418 (Tenn.Crim. App. Aug. 8, 2002), no perm. app. filed. Thereafter, the defendant filed a petition for post-conviction relief seeking a delayed direct appeal.

By order of the post-conviction court, the defendant was granted a delayed appeal with respect to the indictment for felony murder and allowed thirty days to file a motion for new trial. The order provided that issues raised in the petition as to the indictment for aggravated child abuse would be held in abeyance pending resolution of the motion for new trial and delayed appeal relative to the felony murder indictment.

By motion for new trial and subsequent amendment, the defendant claimed, among other things, that the trial court erred by failing to instruct the jury as to any lesser-included offenses of felony murder. Upon denial of the motion by the trial court, the defendant appealed to the Criminal Court of Appeals, which held that the trial court did not err in failing to instruct the jury as to second degree murder or reckless homicide and that while the trial court did err in failing to instruct the jury as to crirrfi-nally negligent homicide, such error was harmless.

We granted review in this case to determine whether the trial court erred in failing to instruct the jury on lesser-included offenses of felony murder and if so, whether such error was harmful. After review, we hold that the trial court erred in failing to instruct the jury as to the lesser-included offenses of felony murder and that such error was harmful, warranting reversal of the conviction of felony murder and remand for a new trial as to that charge.

Analysis

The defendant contends that the trial court should have instructed the jury as to second degree murder, reckless homicide, and criminally negligent homicide as lesser-included offenses of felony murder and that its failure to do so was harmful error. We reiterated the importance of charging a jury as to lesser-included offenses in State v. Bums, 6 S.W.3d 453 (Tenn.1999), where we noted that such a practice benefits the prosecution and the defense:

At common law the jury was permitted to find the defendant guilty of any lesser offense necessarily included in the offense charged. This rule originally developed as an aid to the prosecution in cases in which the proof failed to establish some element of the crime charged. But it has long been recognized that it can also be beneficial to the defendant because it affords the jury a less drastic alternative than the choice between conviction of the offense charged and acquittal .... [Providing the jury with the “third option” of convicting on a lesser included offense ensures that the jury will accord the defendant the full benefit of the reasonable-doubt standard.

Id. at 464 (quoting Beck v. Alabama, 447 U.S. 625, 633-34, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980)).

The statutory law of this state reflects the importance of properly instructing a jury with respect to lesser-included offenses. Tennessee Code Annotated section 40-18-110(a) (1997), applicable at the time of trial, imposed a duty upon the trial court to instruct the jury as to lesser-included offenses of the felony murder charge even in the absence of a request by the defendant:

It is the duty of all judges charging juries in cases of criminal prosecutions for any felony wherein two (2) or more grades or classes of offense may be included in the indictment, to charge the jury as to all of the law of each offense included in the indictment, without any request on the part of the defendant to do so.

Tenn.Code Ann. § 40-18-110(a) (emphasis added).

In addition, the well-established law of this state recognizes that the right to lesser-included offense instructions derives not only from statutory law, but also from the right to trial by jury as embodied at Article I, section 6 of the Tennessee Constitution, which provides that “the right of trial by jury shall remain inviolate.” State v. Ely, 48 S.W.3d 710, 726-27 (Tenn.2001) (citing State v. Bolden, 979 S.W.2d 587, 593 (Tenn.1998); State v. Staggs, 554 S.W.2d 620, 626 (Tenn.1977); Strader v. State, 210 Tenn. 669, 362 S.W.2d 224, 230 (1962)); see also State v. Davis, 266 S.W.3d 896, 902 (Tenn.2008); State v. Richmond, 90 S.W.3d 648, 661 (Tenn.2002); State v. Bowles, 52 S.W.3d 69, 77 (Tenn.2001); State v. Belser, 945 S.W.2d 776, 790 (Tenn.Crim.App.1996); State v. Howard, 926 S.W.2d 579, 585 (Tenn.Crim.App.1996); State v. Summerall, 926 S.W.2d 272, 278 (Tenn.Crim.App.1995); State v. Ruane, 912 S.W.2d 766, 783 (Tenn.Crim.App.1995); State v. Lewis, 919 S.W.2d 62, 68 (Tenn.Crim.App.1995).

In Bolden, we emphasized the mandatory nature of the duty to instruct on lesser-included offenses and that “neither the prosecution nor the defense should be allowed, based on their trial strategy, to preclude the jury from considering guilt of a lesser offense included in the crime charged.” Id. at 593 (quoting People v. Barton, 12 Cal.4th 186, 47 Cal.Rptr.2d 569, 906 P.2d 531, 536 (1995)).

We set forth in Bums various criteria for determining whether a particular offense is a lesser-included offense of the offense that is the subject of indictment. An offense qualifies as a lesser-included offense “if all of its statutory elements are included within the statutory elements of the offense charged; or ... it fails to meet [that] definition ... only in the respect that it contains a statutory element or elements establishing ... a different mental state indicating a lesser kind of culpability.” Bums, 6 S.W.3d at 466-67 (emphasis added). In Ely, 48 S.W.3d at 721-22 (Tenn.2001), we held that “because the mental states required for the lesser offenses differ only in the level of culpability attached to each in terms of seriousness and punishment, the offenses of second degree murder, reckless homicide, and criminally negligent homicide are lesser-included offenses of felony murder.” See also State v. Locke, 90 S.W.3d 663, 669-70 (Tenn.2002).

However, as we further indicated in Bums, our inquiry must proceed beyond the conclusion that an offense is a lesser-included offense. In order to properly decide whether a trial court has erred in failing to give jury instructions as to a lesser-included offense, we must also examine all of the evidence in the case and determine 1) “whether any evidence exists that reasonable minds could accept as to the lesser-included offense” and 2) whether “the evidence ... is legally sufficient to support a conviction for the lesser-included offense.” 6 S.W.3d at 469. In conducting this two-step analysis, we are required to “view the evidence liberally in the light most favorable to the existence of the lesser-included offense without making any judgments on the credibility of such evidence.” Id. Further, we must bear in mind that the trial court’s duty to instruct on a lesser-included offense is not contingent upon the lesser-included offense being consistent with the theory of the State or the defendant, as it is “[t]he evidence, not the theories of the parties, [that] controls whether an instruction is required.” State v. Alien, 69 S.W.3d 181, 187-88 (Tenn.2002).

We now consider whether the trial court should have instructed the jury on the lesser-included offense of second degree murder. As pertinent to this case, the statutory definition of second degree murder is “[a] knowing killing of another,” TenmCode Ann. § 39-13-210(a) (1991 & Supp.1996), and “[a] person acts knowingly with respect to a result of the person’s conduct when the person is aware that the conduct is reasonably certain to cause the result.” Tenn.Code Ann. § 39-ll-302(b) (1991). Second degree murder is a result of conduct offense and accordingly, “[t]he ‘nature of the conduct’ that causes death or the manner in which one is killed is inconsequential under the second degree murder statute. The statute focuses purely on the result and punishes an actor who knowingly causes another’s death.” State v. Ducker, 27 S.W.3d 889, 896 (Tenn.2000); see also State v. Page, 81 S.W.3d 781, 787 (Tenn.Crim.App.2002). To sustain a finding that a defendant acted knowingly, the State is not required to prove that the defendant wished to cause his victim’s death but only that the defendant knew that his or her actions were reasonably certain to cause the victim’s death. “ ‘A person can act knowingly irrespective of his or her desire that the conduct or result will occur.’ ” State v. Kelley, 34 S.W.3d 471, 478 (Tenn.Crim.App.2000) (quoting State v. Gray, 960 S.W.2d 598, 604 (Tenn.Crim.App.1997)); see TenmCode Ann. § 39-11-302 sentencing comm’n cmts. (“A defendant acts knowingly ... when he or she is ... practically certain that the conduct will cause the result, irrespective of his or her desire that the ... result will occur.”)

Whether a defendant acted ‘knowingly’ in killing another is a question of fact to be addressed by the jury. State v. Inlow, 52 S.W.3d 101, 104-05 (Tenn.Crim.App.2000); State v. Brunner, No. W2008-01444-CCA-R3-CD, 2009 WL 2151822, at *6 (Tenn.Crim.App. July 17, 2009), perm. app. denied (Tenn. Nov. 23, 2009). And while a defendant’s mental state is rarely subject to proof by direct evidence, Inlow, 52 S.W.3d at 105, it is within the authority of the jury to infer the defendant’s intent, and, therefore, whether the defendant acted ‘knowingly,’ “from surrounding facts and circumstances.” State v. Lowery, 667 S.W.2d 52, 57 (Tenn.1984); see also Inlow, at 105 (“Intent ... may be deduced or inferred by the trier of fact from the character of the assault, the nature of the act and from all the circumstances of the case in evidence.”); State v. Holland, 860 S.W.2d 53, 59 (Tenn.Crim.App.1993) (“ ‘One’s actions are circumstantial evidence of his intent.’ ” (quoting State v. Barker, 642 S.W.2d 735, 737 (Tenn.Crim.App.1982))).

Cases from other jurisdictions applying statutory law similar to ours have held that evidence establishing the severe nature of the injuries suffered by the victim in a shaken baby syndrome case can support a rational inference that the defendant “knowingly” harmed the victim. In State v. Broseman, 947 S.W.2d 520 (Mo.Ct.App.1997), a jury found a father guilty of the second degree murder of his four-month-old son. Missouri statutory law provided that a person commits second degree murder if he or she “[kjnowingly causes the death of another person or, with the purpose of causing serious physical injury to another person, causes the death of another person,” and that “[a] person acts ‘knowingly’ with respect to the result of his conduct when he is aware that his conduct is practically certain to cause that result.” Id. at 523-24 (quoting Mo. Rev.Stat. §§ 565.021.1(1) and 562.016.3(2) (1994), respectively). The defendant argued that there was insufficient evidence to show that he intended to cause the victim’s death. Based on medical testimony in the case that the shaking would have been “very violent[ ]” the appellate court concluded that “the serious nature of [the baby’s] injury is, in and of itself, a basis for inferring that [the defendant] knew that his actions would be practically certain to result in [the baby’s] death.” Id. at 524.

In State v. Gulertekin, No. 97APA12-1607, 1998 WL 831463 (Ohio Ct.App. Dec. 3, 1998), a child caretaker was convicted of the felonious assault of a baby where that offense was statutorily defined as “knowingly ... causing] serious physical harm to another,” and statutory law further provided that “[a] person acts knowingly, regardless of his purpose, when he is aware that his conduct will probably cause a certain result....” Id. at *20 (quoting Ohio Rev.Code Ann. §§ 2908.11 and 2901.22(B), respectively). Two doctors attested that severe force would have been necessary to cause the victim’s injuries, which included a skull fracture as well as other injuries consistent with shaken baby syndrome, and the court of appeals concluded that, based upon this testimony, a rational trier of fact could find that the defendant in that case acted knowingly. See also State v. Brunell, 159 Vt. 1, 615 A.2d 127,181 (1992) (noting that inference of intent to kill may properly be drawn where a child is attacked solely with the hands) (citing 2 Wayne R. LaFave, et al., Substantive Criminal Law § 7.2, at 195 (1986)).

Our Court of Criminal Appeals indicated that there was inadequate evidence to support a second degree murder conviction in the case before us because there was no proof that the defendant acted knowingly in causing Ashley’s death, stating “the defendant’s theory of the case was that he did nothing to harm the victim and that she was injured when she fell down a flight of stairs.” However, as we have noted, the evidence, not the theories of the parties, is determinative of whether jury instruction is required with respect to a particular offense. Allen, 69 S.W.3d at 187-88.

Upon review of the record as a whole, we find evidence from which the jury could have reasonably inferred that the defendant was aware that his conduct was reasonably certain to cause Ashley’s death and, therefore, that he knowingly killed her. First, it was undisputed that Ashley was in the sole care of the defendant when she suffered her fatal injuries. There was medical testimony from which it could reasonably be concluded that she died as a result of being shaken; therefore, the jury could reasonably infer that the defendant caused Ashley to die by shaking her. Furthermore, as we have noted, Dr. Schmidt attested that “extreme, severe, out of control” shaking would have been required in order to generate sufficient force to produce the neurological injury that Ashley suffered. Similarly, Dr. Gunther testified that to produce shaken baby syndrome in a child of Ashley’s age “you would have to shake [the child] extremely hard,” that “you must shake the baby so hard that the baby’s head whips back and forth and the axons of the neurons break.” Based upon this medical testimony regarding the extreme amount of force used to cause Ashley’s injuries, we believe a jury could also infer that the defendant was aware that his conduct was reasonably certain to cause Ashley’s death and, therefore, that he knowingly killed her. Because we conclude that there was sufficient evidence in this case from which a jury could reasonably determine that the elements of second degree murder were established, we further hold that the trial court erred in failing to instruct the jury as to that offense.

It necessarily follows, then, that the trial court also erred in failing to instruct the jury as to the two remaining included offenses of reckless homicide, which is defined as “reckless killing of another,” Tenn.Code Ann. § 39-13-215 (Supp.1996), requiring that a person “is aware of but consciously disregards a substantial and unjustifiable risk that ... the result will occur,” Tenn.Code Ann. § 39-ll-302(c), and criminally negligent homicide, which is “[c]riminally negligent conduct which results in death,” Tenn.Code Ann. § 39-13-212 (1991), requiring that a person “ought to be aware of a substantial and unjustifiable risk that the circumstances exist or the result will occur,” TenmCode Ann. § 39-ll-302(d). The mens rea of recklessness and criminal negligence are encompassed by the definition of “knowing,” Ely, 48 S.W.3d at 723 (citing Tenn.Code Ann. § 39-ll-301(a)(2)), and therefore, having concluded that the evidence would have supported a reasonable inference that the defendant knowingly killed Ashley, we must necessarily conclude that the evidence would have supported a reasonable inference that the defendant acted either recklessly or with criminal negligence.

Having determined that the trial court should have instructed the jury as to the lesser-included offenses of second degree murder, reckless homicide, and criminally negligent homicide, we must now determine whether the trial court’s failure to instruct the jury as to those offenses was harmless error.

We have recognized three categories of error: 1) structural constitutional errors, which compromise the integrity of the judicial process and require automatic reversal; 2) nonstructural constitutional errors, which require reversal unless the State proves beyond a reasonable doubt that the error is harmless; and 3) non-constitutional errors, which do not require reversal absent proof by the defendant that the error more probably than not affected the judgment or would result in prejudice to the judicial process. State v. Rodriguez, 254 S.W.3d 361, 371-72 (Tenn.2008). The failure of a trial court to instruct the jury as to a lesser-included offense is a non-structural constitutional error, id. at 371 n. 16 (citing State v. Page, 184 S.W.3d 223, 230 (Tenn.2006)), and accordingly, the State has the burden of showing that the error is harmless beyond a reasonable doubt. As we noted in Rodriguez, whether error is harmless is not determined by the existence of sufficient evidence to affirm a conviction or by the belief that the jury rendered the correct verdict. Rather, “the crucial consideration is what impact the error may reasonably be taken to have had on the jury’s decision-making....” Rodnguez, 254 S.W.3d at 372 (citations omitted); see also Allen, 69 S.W.3d 181, 190 (Tenn.2002) (noting that proper test in harmless error analysis of nonstructural constitutional error is “whether it appears beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained” (quoting Neder v. United States, 527 U.S. 1, at 15, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999))). In assessing whether an error did not affect the trial’s outcome beyond a reasonable doubt, we must “conduct a thorough examination of the record, including the evidence presented at trial, the defendant’s theory of defense, and the verdict returned by the jury.” Allen, 69 S.W.3d at 191.

In the instant case, the jury convicted the defendant of aggravated child abuse and felony murder in the perpetration of aggravated child abuse, which required, at least, a finding that the defendant “knowingly, other than by accidental means, treat[ed] a child under eighteen (18) years of age in such a manner as to inflict injury.” Tenn.Code. Ann. § 39-15-401(a). However, as we stated in Bums, “[w]hether sufficient evidence supports a conviction of the charged offense does not affect the trial court’s duty to instruct on the lesser offense if evidence also supports a finding of guilt on the lesser offense.” 6 S.W.3d at 472; see also State v. Monger, No. W2000-00489-CCA-R3-CD, 2001 WL 1011763, at * 15 (Tenn.Crim.App. Aug. 27, 2001), perm. app. granted, cause remanded (Feb. 11, 2002) (noting that the absence of intent to commit aggravated child abuse is not an essential element of the lesser-included offenses of felony murder, and establishment of that intent is immaterial in determining whether there is sufficient evidence for conviction of such lesser-included offenses). Thus, a finding by the jury that the evidence established the elements of aggravated child abuse would not preclude the jury from convicting the defendant of the lesser-included offenses of felony murder. Had it been properly instructed as to the lesser-included offenses, based upon the evidence presented, the jury could have alternatively found that the defendant was aware that his actions were reasonably certain to cause Ashley’s death, supporting a conviction of second degree murder; that he was aware of, but consciously disregarded, a substantial risk that Ashley’s death would occur, supporting a conviction of reckless homicide; or that he ought to have been aware of a substantial and unjustifiable risk that her death would occur, supporting a conviction of criminally negligent homicide. As we stated in Ely,

[when] the evidence clearly was sufficient to support a conviction for second degree murder, reckless homicide, or criminally negligent homicide, [and] the jury was not given an opportunity to reach a decision on these offensesf,] ... we cannot say that the failure to instruct on the lesser-included offenses was harmless beyond a reasonable doubt.

48 S.W.3d at 727; see also Locke, 90 S.W.3d at 673.

In summary, we hold that the trial court erred in failing to instruct the jury as to the lesser-included offenses of second degree murder, reckless homicide, and criminally negligent homicide and that it has not been established that such error was harmless beyond a reasonable doubt. Thus, the trial court’s error in this regard warrants reversal of the defendant’s conviction for felony murder by perpetration of aggravated child abuse and a new trial on that issue.

Conclusion

For the reasons stated, it is our conclusion that the trial court erred by failing to instruct the jury on second degree murder, reckless homicide, and criminally negligent homicide as lesser-included offenses of felony murder. We further conclude that it has not been shown that such error was harmless beyond a reasonable doubt. Accordingly, the defendant’s conviction for felony murder is reversed, and the judgment of the Court of Criminal Appeals is reversed. This case is remanded to the trial court for a new trial consistent with this opinion. Costs of the appeal are taxed to the State.

      . Tennessee Code Annotated section 39 — 15— 402 (1991 & Supp.1996) provided in pertinent part:
      (a) A person is guilty of the offense of aggravated child abuse who commits the offense of child abuse as defined in § 39-15-401 and:
      (1) The act of abuse results in serious bodily injury to the child[.]
      Tennessee Code Annotated section 39-15-401(a) (Supp.1996) provided, "Any person who knowingly, other than by accidental means, treats a child under eighteen (18) years of age in such a manner as to inflict injury or neglects such a child so as to adversely affect the child's health and welfare is guilty of a Class A misdemeanor; provided, that if the abused child is six (6) years of age or less, the penalty is a Class D felony.”

      . Tennessee Code Annotated section 39-13-202 (Supp.1996) provided in pertinent part:
      (a) First degree murder is:

      (2) A killing of another committed in the perpetration of or attempt to perpetrate any ... aggravated child abuse_
      (b) No culpable mental state is required for conviction under subdivision (a)(2) ... except the intent to commit the enumerated offenses or acts....

      . Tennessee Code Annotated section 39-13-202(a)(1) provided that "[fjirst degree murder is ... [a] premeditated and intentional killing of another[.]”

      . The motion for new trial also included a claim that the trial court erred by failing to take curative action or declare a mistrial based upon an allegedly improper and inflammatory reference to Ted Bundy and John Wayne Gacy made by the State during closing argument rebuttal. This issue was also raised in the defendant's brief in this appeal. We need not address this issue, however, because it has been rendered moot by our decision to reverse the trial court's judgment.

      . Pursuant to amendment of this statute in 2001, the trial judge's duty to instruct as to lesser charges is now contingent upon a party’s prior written request, and in its current manifestation, the statute states in pertinent part as follows:
      When requested by a party in writing prior to the trial judge's instructions to the jury in a criminal case, the trial judge shall instruct the jury as to the law of each offense specifically identified in the request that is a lesser included offense of the offense charged in the indictment or presentment.
      Tenn.Code Ann. § 40-18-110(a) (2006 & Supp.2009).


author: FRANK G. CLEMENT, JR., J.,

text:
    In re HEAVEN L.F. et al.

    Court of Appeals of Tennessee, Middle Section, at Nashville.
    Feb. 4, 2010 Session.
    Feb. 19, 2010.
    Permission to Appeal Denied by Supreme Court May 6, 2010.

      James Reed Brown, Byrdstown, Tennessee, for the appellant, Tonyia W.
    Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; and Joshua Davis Baker, Assistant Attorney General, for the appellee, State of Tennessee, Department of Children’s Services.

      . This Court has a policy of protecting the identity of children in parental termination cases by initializing the last names of the parties.

   OPINION

FRANK G. CLEMENT, JR., J.,

delivered the opinion of the Court,

in which ANDY D. BENNETT and RICHARD H. DINKINS, JJ., joined.

Mother appeals the termination of her parental rights to her four children. The trial court terminated Mother’s parental rights on the grounds of severe child abuse, persistence of conditions, substantial noncompliance with the requirements of the permanency plan, and abandonment by failure to provide a suitable home as well as on a finding that termination of her parental rights was in the best interests of the children. We affirm.

The Department of Children’s Services (“the Department”) removed the children from the parents’ home in April 2006 after allegations arose that Father had sexually abused the eldest daughter. Thereafter, the Department filed a petition in the Juvenile Court of Pickett County to have the children declared dependent and neglected. On March 27, 2007, the juvenile court found that the children were dependent and neglected and that both parents had committed severe child abuse. The juvenile court also issued a restraining order prohibiting Father from having any contact with the children. The children were placed into the legal custody of the Department following a hearing on April 20, 2006.

Both parents appealed to the circuit court. Following a de novo review on December 2, 2008, the circuit court found that both parents had committed severe child abuse and that the children were dependent and neglected. The parents appealed that ruling to this court. In a decision entered on February 4, 2009, we affirmed the circuit court’s decision finding, inter alia, that both parents had committed severe child abuse and that the children were dependent and neglected. See In the Matter of H.L.F., 297 S.W.3d 223 (Tenn.Ct.App.2009). Father did not appeal our decision; thus, our ruling that the father had committed severe child abuse was a final judgment. Mother, however, sought permission to appeal our decision to the Supreme Court. The Supreme Court denied her application for permission to appeal on June 15, 2009, at which time our ruling that Mother had committed severe child abuse became a final judgment and was res judicata.

In the interim, the children remained in the Department’s custody. Prior to the commencement of this action, the Department created four identical permanency plans addressing the needs of each of the four children. A Department caseworker, Stone Steele, was assigned to Mother, and Mother was provided with in-home parenting classes, a psychological evaluation, and supervised visitation with the children. Mother’s caseworker met with her periodically to discuss the permanency plan and its requirements. Despite the efforts of the Department and the requirement in the permanency plan that Mother provide “suitable, stable, secure and safe housing,” Mother continued to reside with Father and refused to believe that Father had sexually abused their daughter. Mother also continued to demonstrate inappropriate behavior such as sending her Department caseworker inappropriate sexually oriented text messages on the cellular phone provided to her by the Department.

On August 20, 2007, the Department filed this action, seeking to terminate the parental rights of Mother and Father on the grounds of severe child abuse, abandonment by failure to establish a suitable home, substantial noncompliance with the permanency plan, and persistence of conditions. The trial was held on April 15, 2009. At the time of trial, Mother was still living with Father and continued to express disbelief that Father had sexually abused their daughter. The trial court found that both parents’ parental rights should be terminated on the grounds of severe child abuse, abandonment by failure to provide a suitable home, substantial noncompliance with the requirements of the permanency plan, and persistence of conditions. The trial court also found that the termination of the parents’ parental rights was in the best interests of the children. The trial court terminated Mother and Father’s parental rights on July 10, 2009. Mother filed a timely appeal; Father did not appeal.

Analysis

Parents have a fundamental right to the care, custody and control of their children. Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972); Hawk v. Hawk, 855 S.W.2d 573, 577 (Tenn.1993). This right is superior to the claims of other persons and the government, yet it is not absolute. In re S.L.A., 223 S.W.3d 295, 299 (Tenn.Ct.App.2006).

Parental rights may be terminated only where a statutorily defined ground exists. Tenn.Code Ann. § 36 — 1—113(c)(1); Jones v. Garrett, 92 S.W.3d 835, 838 (Tenn.2002); In re M.W.A., 980 S.W.2d 620, 622 (Tenn.Ct.App.1998). The petitioner has the burden of proving that there exists a statutory ground for termination, such as abandonment or failing to remedy persistent conditions that led to the removal of the child. TenmCode Ann. § 36-1-113(c)(1); Jones, 92 S.W.3d at 838. Only one ground need be proved, so long as that ground is proved by clear and convincing evidence. See In re D.L.B., 118 S.W.3d 360, 367 (Tenn.2003). In addition to proving one of the grounds for termination, the petitioner must prove that termination of parental rights is in the child’s best interest. Tenn.Code Ann. § 36 — 1—113(e)(2); In re F.R.R., 193 S.W.3d 528, 530 (Tenn.2006); In re A.W., 114 S.W.3d 541, 544 (Tenn.Ct.App.2003); In re C.W.W., 37 S.W.3d 467, 475-76 (Tenn.Ct.App.2000) (holding a court may terminate a parent’s parental rights if it finds by clear and convincing evidence that one of the statutory grounds for termination of parental rights has been established and that the termination of such rights is in the best interests of the child). Therefore, a court may terminate a person’s parental rights if (1) the existence of at least one statutory ground is proved by clear and convincing evidence and (2) it is clearly and convincingly established that termination of the parent’s rights is in the best interest of the child. Tenn.Code Ann. § 36—1—113(e); In re Adoption of A.M.H., 215 S.W.3d 793, 810 (Tenn.2007); In re Valentine, 79 S.W.3d 539, 546 (Tenn.2002).

Whether a statutory ground has been proved by the requisite standard of evidence is a question of law to be reviewed de novo with no presumption of correctness. In re B.T., No. M2007-01607-COA-R3-PT, 2008 WL 276012, at *2 (Tenn.Ct.App. Jan. 31, 2008) (no Tenn.R.App. P. 11 application filed) (citing In re Adoption of A.M.H., 215 S.W.3d at 810).

Grounds for Termination

The trial court granted termination of Mother’s parental rights on several grounds including the ground of severe child abuse. Tennessee Code Annotated § 36—1—113(g)(4) provides that a parent’s rights may be terminated if a prior court order found the parent committed severe child abuse against the child who is the subject of the petition, or any sibhng or half-sibling of the child, or any other child residing in the home of the parent. Tenn. Code Ann. § 36-l-113(g)(4). One of the issues raised by Mother on appeal is that the trial court erred by finding that the issue of Mother having committed severe child abuse was res judicata. We find no merit to Mother’s contention.

Mother’s four children were previously found to be dependent and neglected based upon a finding that Mother had committed severe child abuse, as defined in Tennessee Code Annotated § 37-1-102(b)(21) (2008). The finding in 2008 that Mother committed severe child abuse of her children was affirmed by this court in 2009 in In the Matter of H.L.F., 297 S.W.3d 223. Mother applied for permission to appeal that decision to the Tennessee Supreme Court; her application was denied on June 15, 2009. Thus, the order finding that Mother had committed severe child abuse became a final, non-appealable judgment on June 15, 2009. The Final Decree of Guardianship terminating Mother’s parental rights to the four children at issue was entered a month later, on July 10, 2009.

The doctrine of res judicata applies when “an existing final judgment rendered upon the merits, without fraud or collusion, by a court of competent jurisdiction, is conclusive of rights, questions and facts in issue as to the parties and their privies, in all other actions in the same or any other judicial tribunal of concurrent jurisdiction.” Galbreath v. Harris, 811 S.W.2d 88, 90 (Tenn.Ct.App.1990). This court previously applied the doctrine of res judicata to prevent a parent from re-litigating whether she committed severe child abuse in a later termination of parental rights proceeding, when such a finding had been made in a previous dependency and neglect action. See State v. Tate, No. 01-A-01-9409-CV-00444, 1995 WL 138858, at *5 (Tenn.Ct.App. Mar. 31,1995). Mother and the Department were parties in the dependency and neglect action and the issue of whether Mother committed severe child abuse was fully litigated in that action. Therefore, the issue of whether Mother committed severe child abuse is res judica-ta and the trial court properly found by clear and convincing evidence that Mother’s parental rights should be terminated pursuant to Tenn.Code Ann. § 36-1-113(g)(4).

While only one ground must be proven for termination of a parent’s parental rights, we have reviewed the record and find there is clear and convincing evidence to also establish that Mother failed to meet the requirements of the permanency plan, failed to remedy the conditions which necessitated the children’s placement in Department custody, and abandoned the children by failing to provide a suitable home for them. Thus, the trial court properly found that there were four grounds for termination of Mother’s parental rights.

Best Interests of the Children

If one statutory ground for termination is proven by clear and convincing evidence, a parent’s rights may be terminated if it is also determined that termination of the parent’s rights is in the best interests of the children. See In re D.L.B., 118 S.W.3d at 367. We have affirmed the trial court’s findings on the four grounds for termination of Mother’s parental rights. We must now determine whether termination of Mother’s parental rights is in the best interests of her four children.

Under Tennessee Code Annotated § 36 — 1—113(i), the factors looked to in order to determine what is in the children’s best interests are:

(1) Whether the parent or guardian has made such an adjustment of circumstance, conduct, or conditions as to make it safe and in the child’s best interest to be in the home of the parent or guardian;
(2) Whether the parent or guardian has failed to effect a lasting adjustment after reasonable efforts by available social services agencies for such duration of time that lasting adjustment does not reasonably appear possible;
(3) Whether the parent or guardian has maintained regular visitation or other contact with the child;
(4) Whether a meaningful relationship has otherwise been established between the parent or guardian and the child;
(5) The effect a change of caretakers and physical environment is likely to have on the child’s emotional, psychological and medical condition;
(6) Whether the parent or guardian, or other person residing with the parent or guardian, has shown brutality, physical, sexual, emotional or psychological abuse, or neglect toward the child, or another child or adult in the family or household;
(7) Whether the physical environment of the parent’s or guardian’s home is healthy and safe, whether there is criminal activity in the home, or whether there is such use of alcohol or controlled substances as may render the parent or guardian consistently unable to care for the child in a safe and stable manner;
(8) Whether the parent’s or guardian’s mental and/or emotional status would be detrimental to the child or prevent the parent or guardian from effectively providing safe and stable care and supervision for the child; or
(9) Whether the parent or guardian has paid child support consistent with the child support guidelines promulgated by the department pursuant to § 36-5-101.

Tenn.Code Ann. § 36 — 1—113(i)(1)—(9) (2009). The foregoing list is not exhaustive and the statute does not require that the trial court find every factor applicable in order to find that termination is in the children’s best interests. In re M.A.R., 183 S.W.3d 652, 667 (Tenn.Ct.App.2005).

The trial court correctly found that termination of Mother’s parental rights was in the children’s best interests based upon several of the statutory factors. Mother had not made an adjustment to the circumstances, conduct, or conditions as to make it safe and in the children’s best interests to be in her home. Mother continued to reside with Father, who was also found to have committed severe child abuse, and she refused to believe Father had sexually abused their eldest daughter. The court also found that the children were doing well in their current foster home placement and their foster parents wished to adopt them.

The evidence in the record clearly and convincingly demonstrates that termination of Mother’s parental rights is in the best interests of the children. The children were removed from the home of Mother and Father following the allegations surrounding Father sexually abusing one of their children and other young females, as well as the inappropriate highly sexualized behavior of Mother. Mother and Father were both adjudged to have committed severe child abuse. See Tenn. Code Ann. § 36 — 1—113(i)(6). Despite this, Mother continued to reside with Father and refused to acknowledge that any abuse had occurred. Despite the reasonable efforts of the Department and the completion by Mother of some of the requirements of the permanency plan, Mother did not make a lasting adjustment in the circumstances, conduct, or conditions to make it safe and in the children’s best interest to be returned to her care. See Tenn.Code Ann. § 36 — 1—113(i)(1)—(2). Mother continued to demonstrate inappropriate behavior, notably sending sexually oriented text messages to her Department caseworker on the phone she was given by the Department in order to stay in contact. See TenmCode Ann. § 36-l-113(i)(8). The record showed that the children were in a stable, loving environment in their current foster home, that the foster family wished to adopt them, and that the children were doing well there. See TenmCode Ann. § 36-1-113(¾(5).

The best interests of the children are to be determined from the perspective of the children rather than the parent, State, Department of Children’s Services v. L.H., 2007 WL 2471500, at *7 (Tenn.App.2007) (citing White v. Moody, 171 S.W.3d 187, 194 (Tenn.Ct.App.2004)), and we find that the evidence in the record clearly and convincingly supports the trial court’s finding that termination of Mother’s parental rights was in the children’s best interests. Therefore, we affirm the trial court’s finding on this issue.

In Conclusion

The judgment of the trial court is affirmed, and this matter is remanded with costs of appeal assessed against the Department of Children’s Services due to Mother’s indigency.

      . The definition for "severe child abuse” is now codified at Tenn.Code Ann. § 37-1-102(b)(23) (2009).

      . Father, who was also provided a permanency plan by the Department, had made no efforts to meet the requirements of his plan such as undergoing a psychosexual evaluation.


author: SHARON G. LEE, Sp. J.,

text:
    NEWELL WINDOW FURNISHING, INC. v. Ruth E. JOHNSON, Commissioner of Revenue, State of Tennessee.
    Court of Appeals of Tennessee, Middle Section, at Nashville.
    Sept. 8, 2008 Session.
    Dec. 9, 2008.

      Frank N. Stockdale Carney and Katharine A. Jungkind, Memphis, Tennessee, and Paul D. Krivacka, Nashville, Tennessee, for the appellant, Newell Window Furnishing, Inc.
    Robert E. Cooper, Jr., Attorney General and Reporter, and Brad H. Buchanan, Assistant Attorney General, Nashville, Tennessee, for the appellee, Ruth E. Johnson, Commissioner of Revenue, State of Tennessee.
   OPINION

SHARON G. LEE, Sp. J.,

delivered the opinion of the court,

in which HERSCHEL P. FRANKS, P.J., and D. MICHAEL SWINEY, J., joined.

The issues presented in this case involve the interplay between the Tennessee excise tax and the provisions of 26 U.S.C. § 338(h)(10). Newell Window Furnishing, Inc. (“Newell”) filed suit for refund of state excise tax paid on income recognized from the sale of corporate capital stock it owned in Kirsch, Inc. (“Kirsch”). The trial court denied the refund. After careful review, we affirm the decision of the trial.

I.Background

This case concerns the State excise tax consequences of the one hundred percent liquidation of a corporation’s capital stock and involves three corporate entities. The parties and factual chronology are as follows:

1) Prior to 1997, Kirsch was a division of Cooper.

2) In January of 1997, Kirsch became a wholly owned corporate subsidiary of Cooper.

3) In May 1997, Cooper sold 100% of Kirsch’s capital stock to Newell. Pursuant to Newell’s election and the agreement of Newell and Cooper, the Kirsch stock sale was treated as a sale of assets as permitted by 26 U.S.C. § 338(h)(10).

As a result of this sale and election, Kirsch reported the gain from the sale as income on the pro forma federal income tax return that was filed as a part of Cooper’s consolidated federal return. Kirsch filed a Tennessee excise tax return for the year ending May 30, 1997, and deducted an amount representing the gain from the sale from its reported net earnings and claimed this amount as a refund. The Commissioner of the Tennessee Department of Revenue (“the Commissioner”) denied the request and assessed additional franchise and excise taxes against Kirsch. Newell, having succeeded to Kirsch’s interests as a result of the sale, filed suit seeking refund of excise taxes, and the trial court granted summary judgment to the Commissioner, ruling that the gain on the sale of Kirsch’s capital stock subjected Kirsch to Tennessee excise tax liability. Newell appeals.

II.Issues

We address the following issues:

1) Whether the gain from the sale of Kirsch’s capital stock to Newell was properly included in Kirsch’s excise tax base where Newell and Cooper agreed to treat the sale in accordance with I.R.C. § 338(h)(10).

2) Whether the gain from the sale of Kirsch’s capital stock to Newell is properly categorized as “business earnings” under Tenn.Code Ann. § 67-4-804(a)(l) and, therefore, apportionable as part of Kirsch’s tax base for Tennessee excise tax purposes.

3) Whether the assessment of excise taxes against Kirsch as a result of the sale of Kirsch’s capital stock to Newell is a violation of the Commerce Clause and the Due Process Clause of the U.S. Constitution under the unitary business principle.

III.Analysis

A. Standard of Review

Summary judgments enable courts to conclude cases that can and should be resolved on dispositive legal issues. See Byrd v. Hall, 847 S.W.2d 208, 210 (Tenn.1993); Airport Props. Ltd. v. Gulf Coast Dev., Inc., 900 S.W.2d 695, 697 (Tenn.Ct.App.1995). They are appropriate only when the facts material to the dispositive legal issues are undisputed. Accordingly, they should not be used to resolve factual disputes or to determine the factual inferences that should be drawn from the evidence when those inferences are in dispute. See Bellamy v. Fed. Express Corp., 749 S.W.2d 81, 83 (Tenn.1988).

Our task on appeal is to review the record to determine whether the requirements for granting summary judgment have been met. See Hunter v. Brown, 955 S.W.2d 49, 50-51 (Tenn.1997); Aghili v. Saadatnejadi, 958 S.W.2d 784, 787 (Tenn.Ct.App.1997). Tennessee Rule of Civil Procedure 56.04 provides that summary judgment is appropriate where: (1) there is no genuine issue with regard to the material facts relevant to the claim or defense contained in the motion, see Byrd, 847 S.W.2d at 210; and (2) the moving party is entitled to a judgment as a matter of law on the undisputed facts. See Anderson v. Standard Register Co., 857 S.W.2d 555, 559 (Tenn.1993). A party seeking a summary judgment must demonstrate the absence of any genuine and material factual issues. Byrd, 847 S.W.2d at 214. In this case, the salient facts are not in dispute, and it is our task to determine whether summary judgment was proper as a matter of law.

B. Gain Under 26 U.S.C. § 338(h)(10)

26 U.S.C. § 338(h)(10) provides in part as follows:

(10) Elective recognition of gain or loss by target corporation, together with nonrecognition of gain or loss on stock by selling consolidated group.—
(A) In general — Under regulations prescribed by the Secretary, an election may be made under which if—
(i) the target corporation was, before the transaction, a member of the selling consolidated group, and
(ii) the target corporation recognizes gain or loss with respect to the transaction as if it sold all of its assets in a single transaction then the target corporation shall be treated as a member of the selling consolidated group with respect to such sale, and (to the extent provided in regulations) no gain or loss will be recognized on stock sold or exchanged in the transaction by members of the selling consolidated group.

First, Newell argues that its election to treat the sale of Kirsch’s stock in accordance with 26 U.S.C. § 338(h)(10) “was an election for specific federal tax treatment and nothing else.” Newell contends that this section creates the “legal fiction” that the sale is a sale of Kirsch’s assets followed by what is deemed an immediate liquidation of that company and that this “legal fiction” was the only reason Kirsch reported a gain from the sale on the pro forma tax return that was filed in support of Cooper’s consolidated return. Newell argues that this “legal fiction” should not determine Kirsch’s Tennessee excise tax liability. Newell notes that Cooper was the owner and seller of Kirsch’s stock, received the sales proceeds, and reported the gain from the sale in its (Cooper’s) income for federal consolidation purposes. Therefore, Newell contends, the gain from the sale of Kirsch’s capital stock should be included in Cooper’s excise tax base, not Kirsch’s. We respectfully disagree.

Each separate corporation doing business in Tennessee is responsible for payment of the state’s excise tax pursuant to Tenn.Code Ann. § 67-4-806(a) (1994), which provides that “[a]ll corporations, ... organized for profit under the laws of this state or any other state or country and doing business in Tennessee, ... shall, without exception other than as provided herein, pay to the commissioner of revenue, annually, an excise tax.” Further, it is agreed that Tennessee statutory law provides, as follows, that the starting point for determining a corporation’s Tennessee excise tax base is federal taxable income:

Except as provided in subdivision (a)(2) or (3), “net earnings” is defined as federal taxable income before the operating loss deduction and special deductions provided for in 26 U.S.C. §§ 241-247 and 249-250, and subject to the adjustments in subsection (b).

Tenn.Code Ann. § 67-4-805(a)(l). Both of these statutory provisions were in effect when Newell elected to proceed under 26 U.S.C. § 338(h)(10) as to the sale of Kirseh’s capital stock. Accordingly, New-ell is presumed to have understood that under Tenn.Code Ann. § 67-4-806(a), Kirsch, as a corporation doing business in Tennessee, would be required to pay an excise tax and that the amount assessed would be determined by the amount of income reported by Kirsch for federal income tax purposes. While Newell terms the consequence of its election to proceed under 26 U.S.C. § 338(h)(10) a “legal fiction,” it resulted in a real benefit to Newell in that, as recognized by the trial court in its final order, Newell was thereby “enabled to allocate the price paid for the stock to the assets obtained and to use the allocation as the cost basis for purposes of depreciating and/or amortizing the cost basis of the assets.” Having freely chosen to proceed under 26 U.S.C. § 338(h)(10), Newell is bound by that choice and all attendant consequences. As the trial court further correctly observed, under the above noted Tennessee statutory authority, a subsidiary corporation doing business in this state is separately reported and taxed, such tax is assessed based upon such subsidiary’s reported federal taxable income, and there is no requirement that the subsidiary actually have incurred and paid the federal tax as a prerequisite to imposition of the excise tax.

Although Tennessee courts do not appear to have addressed the state excise tax ramifications of an election under the subject section of the Internal Revenue Code, we find guidance, as did the trial court, in an opinion of the Tax Court of New Jersey, Gen. Bldg. Prods. Corp. v. New Jersey, 14 N.J.Tax 232 (1994). Under the facts in that case, one corporation purchased all of the stock of another corporation’s wholly-owned subsidiary and by agreement of the purchaser and seller an election was made under 26 U.S.C. § 338(h)(10) to treat the sale of stock as a sale of assets for purposes of federal income taxation. As a result of the election, as regarded federal taxes, the subsidiary was deemed to have sold all of its assets to itself for the amount paid for its stock, and the purchaser had the subsidiary report the gain from the deemed sale in the subsidiary’s state corporate business tax return. Thereafter, this return was amended to disavow the deemed sale and associated previously reported gain and to request a refund of taxes paid upon such reported gain. At trial upon the refund request, the purchaser argued that 26 U.S.C. § 338(h)(10) is provided for use by consolidated groups and because New Jersey did not recognize consolidated groups or consolidated filings (just as Tennessee imposes an excise tax on each separate corporation doing business in our state), it could not recognize the consequences of the parties’ election under that section, including the deemed sale of the subsidiary’s assets and the gain reported on such sale. The trial court found no merit in this argument, stating as follows:

New Jersey’s prohibition against consolidated returns does not immunize [the subsidiary] from state taxation of any gain as a result of its assets. It merely requires that the tax consequences of the deemed sale be independently reported by [the subsidiary]. The original [corporate business tax return] for the State of New Jersey ... reflecting the gain in the books of account of [the subsidiary] of the deemed sale of its assets to itself and reflecting the stepped-up basis of those assets, represents the correct tax consequences under the Act and the applicable regulations of the deemed sale and the election under § 338(h)(10).
* * ⅜
The parties made the § 338(h) (10) election and are bound to accept the consequences which flow from it under the [New Jersey Corporate Business Tax Act]. In this case, because of New Jersey’s prohibition of consolidated returns, one consequence of [the purchaser’s] and [the seller’s] decision to make a § 338(h) (10) election is that [the subsidiary] .must independently report the gain from the deemed sale. Any other result would deprive the State of New Jersey of taxes to which it is legitimately entitled.

Id. at 248-249 (emphasis added).

Based upon the plain meaning of the above referenced statutory authority and guided by the court’s ruling in Gen. Bldg. Prods. Corp., we conclude that the gain reported by Kirsch on the federal pro for-ma tax return as a result of the deemed sale of its assets was properly included in its excise tax base, and Newell’s argument to the contrary is without merit.

C. Business Earnings

Next, Newell contends that even if the gain from the sale of Kirsch’s assets is properly recognized for purposes of the excise tax, such gain constitutes nonbusiness earnings and therefore, should not be included in Kirsch’s tax base for purposes of assessing the Tennessee excise tax.

For tax purposes, Tennessee statutory law requires that a corporation divide its income among those states in which it is doing business according to whether such income is classified as “business earnings” or “nonbusiness earnings” with the tax of business earnings being apportioned among the various states consistent with a formula taking into account the corporation’s property, payroll, and sales and with the tax based upon nonbusiness earnings being allocated to its source in a particular state. See Gen. Care Corp. v. Olsen, 705 S.W.2d 642, 644 (Tenn.1986). Tennessee Code Annotated § 67-4-804(a)(l) (Supp. 1997) defines “business earnings” as

earnings arising from transactions and activity in the regular course of the taxpayer’s trade or business or earnings from tangible and intangible property if the acquisition, use, management or disposition of the property constitutes an integral part of the taxpayer’s regular trade or business operations. In essence, earnings which arise from the conduct of the trade or trades or business operations of a taxpayer are “business earnings,” and the taxpayer must show by clear and cogent evidence that particular earnings are classifiable as nonbusiness earnings.

Nonbusiness earnings consist of “all earnings other than business earnings.” Tenn. Code Ann. § 67 — 4—804(a)(10). That portion of the statute defining “business earnings” as “earnings arising from transactions and activity in the regular course of the taxpayer’s trade or business” has been designated “the transactional test,” whereas that part of the statute defining “business earnings” as “earnings from tangible and intangible property if the acquisition, use, management or disposition of the property constitutes an integral part of the taxpayer’s regular trade or business operations” has been entitled the “functional test.” Associated P’ship I, Inc. v. Huddleston, 889 S.W.2d 190, 195-96 (Tenn.1994).

Newell contends that earnings are properly classified as business earnings under both the transactional test and the functional test only if they are earnings arising from the regular course of the taxpayer’s trade or business. Newell notes that the trial court specifically found that the sale of Kirsch was a one-time sale of an entire business entity, which was not in the regular course of Kirsch’s trade or business, and therefore, any gain from the disposition of Kirsch’s assets constitutes nonbusiness earnings. We do not agree.

Newell construes the functional test to mean that earnings from the disposition of a taxpayer’s business are not business earnings unless the disposition itself was an integral part of the taxpayer’s trade or business. But this is in fact the transactional test. In accord with what we deem to be the plain meaning of the statutory language, we construe the functional test to mean that business earnings are earnings which arise from either the management, use, acquisition, or disposition of property that constitutes an integral part of the taxpayer’s trade or business. The proper question under the functional test is not whether the disposition of the property was an integral part of the corporation’s regular business, but rather, whether the property disposed of was an integral part of the corporation’s regular business. It is not disputed that the assets deemed sold by Kirsch were an integral part of Kirsch’s regular business, and accordingly, the gain realized from the sale constitutes business earnings subject to apportionment for excise tax purposes.

D. Unitary Business Principle

The final issue presented for our review is whether including the gain from the deemed liquidation of Kirsch in Kirsch’s excise tax base violates the Due Process Clause and the Commerce Clause of the U.S. Constitution under the unitary business principle.

Both the Due Process Clause and the Commerce Clause require that there be “some link, some minimum connection, between a state and the person, property or transaction it seeks to tax” and forbid a State to tax gains earned outside its borders. See Allied-Signal, Inc. v. Director, Div. of Taxation, 504 U.S. 768, 777, 112 S.Ct. 2251, 119 L.Ed.2d 538 (1992) (citing Miller Brothers Co. v. Maryland, 347 U.S. 340, 344-345, 74 S.Ct. 535, 98 L.Ed. 744 (1954)). However, where, as in the instant matter, a taxpayer has done business in the State, taxation is justified by the “protection, opportunities and benefits” the State has conferred on the taxpayer’s activities within the State. Id. at 778, 112 S.Ct. 2251. The U.S. Supreme Court has further noted in a recent opinion that when a taxpayer has engaged in intrastate business the question becomes what aspect of the business may be taxed by the host state, and this has given rise to the unitary business principle:

Where, as here, there is no dispute that the taxpayer has done some business in the taxing State, the inquiry shifts from whether the State may tax to what it may tax. To answer that question, we have developed the unitary business principle. Under that principle, a State need not isolate the intrastate income-producing activities from the rest of the business but may tax an apportioned sum of the corporation’s multistate business if the business is unitary. The court must determine whether intrastate and extrastate activities formed part of a single unitary business or whether the out-of-state values that the State seeks to tax derived from unrelated business activity which constitutes a discrete business enterprise.

MeadWestvaco Corp. v. III. Dep’t of Revenue, 558 U.S. 16, 25, 128 S.Ct. 1498, 1505, 170 L.Ed.2d 404 (2008) (citations omitted). In Louis Dreyfus Corp. v. Huddleston, 938 S.W.2d 460 (Tenn.Ct.App.1996), we noted that “[a] unitary business is a business whose components are too closely connected and necessary to each other to justify division or separate consideration as independent units” Id. at 467. Unity of ownership alone is insufficient to support a finding that a business is unitary, and factors that should be considered in reaching that determination are the extent of control and ownership that the various components of the business have over one another, the degree of functional integration or interrelationship/interdependence among the business’s operations, and the economies of scale. Id. at 469-70.

Newell contends that the Department’s attempt to assess taxes on the gain from the sale of Kirseh’s capital stock is actually a tax on Cooper. Newell asserts that Kirsch and Cooper are not a unitary business, given that they were involved in unrelated industries and functioned as stand alone businesses with separate management, accounting departments, and computer systems. Therefore, Newell apparently argues, any excise tax that is in effect a tax on Cooper violates the Due Process and Commerce Clauses.

We find no merit in Newell’s argument for the simple reason that the record does not support Newell’s allegations that the tax at issue was a tax imposed on Cooper. The tax was imposed on Kirsch alone, based upon the gain reported by Kirsch on the federal pro forma tax return, reflecting as we have determined, business earnings on the sale. Kirsch paid the tax. Under the circumstances, it is irrelevant whether Kirsch and Cooper are unitary. It is undisputed that Kirsch was doing business in Tennessee during the year of assessment, and the assessment of excise taxes based upon its business earnings from the sale of its assets in that year did not violate either the Commerce Clause or the Due Process Clause.

IV. Conclusion

For the reasons stated herein, we affirm the judgment of the trial court. Costs of appeal are assessed to Newell Window Furnishing, Inc., for which execution may issue if necessary.

      . The transactions at issue in this case having occurred in 1997, all references herein are to that version of the Tennessee Code in effect in 1997. The Court recognizes that since that time, the cited sections have been recodified with different section numbers.