APPELLATE COURT OPINIONS

This workers’ compensation appeal has been referred to the Special Workers’ Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated section 50-6-225(e)(3) for a hearing and a report of findings of fact and conclusions of law. Employee alleged that he sustained an aggravation of pre-existing pulmonary disease as a result of exposure to a chemical in the workplace. The trial court awarded benefits. On appeal the employer contends that the evidence preponderates against the trial court’s decision. We affirm the judgment.

The Defendant pled guilty to four counts of selling .5 grams or more of a Schedule II drug and one count of possession of .5 grams or more of a Schedule II drug for resale. The trial court sentenced her as a Range II, multiple offender to an effective twenty-seven year sentence. On appeal, the Defendant argues that the trial court erred by sentencing her as a Range II offender. We affirm the judgment of the trial court.

The petitioner, Thomas Earl Bradshaw, appeals from the denial of his petition for post-conviction relief, wherein he challenged his 2005 Davidson County Criminal Court conviction of especially aggravated robbery. In this appeal, the petitioner contends that his guilty plea was not knowingly and voluntarily entered because it was the result of the ineffective assistance of his trial counsel. Discerning no error, we affirm the judgment of the post-conviction court.

This appeal involves alleged discrimination based on religion and national origin. The plaintiff is a native of India and a practitioner of Hinduism, and is employed as an associate professor at the defendant university. The plaintiff applied for a promotion to full professor. His application for promotion was denied, based on his lack of achievement in either academic research or public service activities. The plaintiff professor filed a lawsuit alleging that the university discriminated against him on the basis of national origin and religion. The defendants filed a motion for summary judgment, proffering the professor’s lack of research and public service as a legitimate, nondiscriminatory reason for denying his application for promotion. The plaintiff conceded his lack of research and public service, but asserted that he was denied release time from his teaching responsibilities to engage in such activities. The trial court granted the university’s motion for summary judgment, and the plaintiff professor appeals. We affirm, finding that the plaintiff professor cannot show the denial of his application for promotion was discriminatory because he cannot show that he was qualified for such a promotion. We also find the record insufficient to establish a genuine issue of material fact as to whether the denial of release time from the plaintiff’s teaching responsibilities was discriminatory.

This case requires us to inquire whether the Town of Halls was immune under the Tennessee Governmental Tort Liability Act (“GTLA”) for maintaining a baseball field that the plaintiff alleges is a nuisance because one of many balls that flew over the field’s fence into a residential neighborhood injured him. The trial court held that the Town of Halls was immune from liability because it had engaged in a discretionary function and that the baseball field did not constitute a nuisance. On appeal, we find that plaintiff failed to demonstrate that the Town of Halls had notice of any dangerous condition of the baseball field in Kevan Ward Park, and, thus, we affirm the trial court on the basis that the Town of Halls was immune from liability pursuant to the Tennessee Governmental Tort Liability Act.

This appeal involves a disciplinary proceeding against a lawyer that arises from a fee dispute. A hearing panel of the Board of Professional Responsibility suspended the lawyer for six months after determining (1) that he engaged in unprofessional conduct by placing an unauthorized endorsement on a settlement check and (2) that he had converted funds he had withdrawn from his trust account to pay his fee because he failed to return the funds after his client disputed his fee. The lawyer appealed to the Chancery Court for Shelby County. Based on the record of the proceeding before the hearing panel and additional evidence, the reviewing court reduced the six-month suspension to a public censure after determining that the hearing panel erred by concluding that the lawyer had converted his client’s funds and that he was obligated to return the funds after his client disputed his fee. Disciplinary Counsel appealed to this Court. We hold that a public censure is an appropriate remedy in this case.

This is a contract action wherein the parties dispute which of two versions of a professional services agreement is controlling. The trial court determined that the contract/counter-offer proffered by Defendant buyer was the contract between the parties, and that there had been accord and satisfaction when Plaintiff deposited Defendant’s check for the payment amount asserted by Defendant. We reverse the trial court’s finding of accord and satisfaction. We further hold that the contract found by the trial court to be the applicable contract is unenforceable where the contract price is indefinite and where there was a lack of mutual assent to essential terms. We hold Plaintiff is entitled to recover in quantum meruit for services rendered and remand for further proceedings to determine that amount.

The defendant, John David McDaniel, was convicted of three counts of fraudulently obtaining a Schedule II controlled substance, one count of felony evading arrest, one count of misdemeanor evading arrest, and one count of theft of property with a value of less than $500. The defendant  was sentenced to four years for his convictions for fraudulently obtaining a Schedule II controlled substance and felony evading arrest. He received a sentence of 11 months and 29 days for his convictions for misdemeanor evading arrest and theft of property with a value of less than $500. The defendant filed a motion for new trial which was denied after a hearing before the trial court. The defendant filed a timely notice of appeal. The defendant argues on appeal that the trial court erred by sentencing the defendant to the maximum sentence within the range for his convictions. In response, the state argues that the appellate court does not have jurisdiction to consider the defendant’s appeal. The state further argues that the sentencing determination made by the trial court was not in error. Following our review of the parties’ briefs, the record, and the applicable law, we affirm the judgments of the trial court.

The defendant, John David McDaniel, was convicted of three counts of fraudulently obtaining a Schedule II controlled substance, one count of felony evading arrest, one count of misdemeanor evading arrest, and one count of theft of property with a value of less than $500. The defendant  was sentenced to four years for his convictions for fraudulently obtaining a Schedule II controlled substance and felony evading arrest. He received a sentence of 11 months and 29 days for his convictions for misdemeanor evading arrest and theft of property with a value of less than $500. The defendant filed a motion for new trial which was denied after a hearing before the trial court. The defendant filed a timely notice of appeal. The defendant argues on appeal that the trial court  erred by sentencing the defendant to the maximum sentence within the range for his convictions.  In response, the state argues that the appellate court does not have jurisdiction to consider the defendant’s appeal. The state further argues that the sentencing determination made by the trial court was not in error. Following our review of the parties’ briefs, the record, and the applicable law, we affirm the judgments of the trial court.

The defendant, Alvin Malone, was convicted by a Shelby County jury of two counts of first degree felony murder, one count of first degree premeditated murder, and two counts of especially aggravated kidnapping. The defendant’s first degree premeditated murder conviction merged into one of the felony murder convictions by operation of law, and he was sentenced to two life sentences and two twenty-year sentences, to be served consecutively in the Department of Correction. On appeal, the defendant argues that: (1) the trial court erred in excluding statements of two unavailable witnesses; (2) the trial court erred in not granting a continuance; (3) the trial court erred in allowing the State to amend two counts of the indictment; (4) the trial court erred in allowing the State to impeach its own witness without giving a contemporaneous limiting instruction; (5) the trial court erred in allowing testimony concerning cartels and drug activity; (6) the trial court erred in not giving a jury charge on self-defense; (7) the evidence was insufficient to support his convictions; and (8) the trial court improperly applied an enhancement factor in sentencing. Following our review, we affirm the judgments of the trial court.

Appellee Bank filed suit against Appellant to collect for charges made to Appellant’s account. The general sessions court entered judgment in favor of Appellee Bank; Appellant, proceeding pro se, appealed that decision to the Circuit Court at Carroll County. The circuit court affirmed the judgment of the general sessions court and Appellant appeals. In the absence of a transcript or statement of the evidence, the trial court’s factual findings are conclusive on appeal, and we affirm.

The defendant, Julie Ann Taylor Buchanan, entered an open plea to one count of theft of property over $60,000 (Class B felony), one count of theft of property between $1000 and $10,000 (Class D felony), one count of forgery over $60,000 (Class B felony), two counts of forgery between $1000 and $10,000 (Class B felony), and four counts of money laundering (Class B felony), with all the crimes occurring between December 2000 and April 2003. Following a sentencing hearing, she was sentenced to eleven years on each Class B felony and four years on each Class D felony. The sentences were ordered to be served concurrently to each other except for the four-year sentence for the Class D felony theft, which was to be served consecutive to the other eight sentences, for a total effective sentence of fifteen years in the Tennessee Department of Correction. On appeal, the defendant argues that the trial court erred in three areas: (1) enhancing her sentence based on facts neither admitted nor proven to a jury; (2) imposing consecutive sentences; and (3) application of mitigating factors. After careful review, the case is remanded for re-sentencing based upon the erroneous application of application factors in violation of Blakely.

This is an appeal of the trial court’s dismissal of a petition for writ of certiorari filed by an inmate
challenging the result of a prison disciplinary proceeding against him. The trial court dismissed the petition because it was not verified and failed to state that it was the first application for the writ as required by Tenn. Code Ann. § 27-8-106. After careful review, we affirm the decision of the trial court.

Petitioner, Jeffery Michael Mabery, pled guilty to one count of attempted especially aggravated robbery in exchange for a ten-year sentence. Subsequently, he filed a petition for post-conviction relief in which he argued that his guilty plea was unlawfully and involuntarily entered into and that he received ineffective assistance of counsel. The post-conviction court dismissed the petition, finding that it had no merit. Petitioner appeals. Although the notice of appeal in this case is untimely, we waive the timely filing of that document and reverse and remand for an evidentiary hearing on the petition for post-conviction relief.

This is a vehicular accident case. The three plaintiffs, a father and two grown sons, were riding in a truck pulling a trailer. An 18-wheeler driven by the individual defendant rear-ended the plaintiffs. In the days after the accident, all three plaintiffs sought medical treatment for back and neck pain. They filed this lawsuit against the defendants for injuries sustained in the accident. In the jury trial, after the close of the plaintiffs’ proof, the trial court directed a verdict in favor of the defendants on the issue of punitive damages. At the conclusion of the six-day trial, the jury awarded two of the plaintiffs $10,000 each in damages and awarded the other plaintiff $200,000. Fault for the accident was apportioned 70% to the defendant and 30% to the driver of the plaintiffs’ truck, so the plaintiffs’ awards were reduced by 30%. The trial court denied the plaintiffs’ motion to for additur or for a new trial. The plaintiffs now appeal, claiming that the issue of punitive damages should have been presented to the jury, that the amount of the jury’s awards were de minimus and outside the realm of reasonableness, and that there was no material evidence to support the jury’s verdict. We affirm, finding inter alia that the trial court did not err in directing a verdict on the issue of punitive damages, and that material evidence supported the jury’s verdict. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court is Affirmed.
 

Mother of minor child appeals a juvenile court order rejecting her challenge to the validity of a 2004 order awarding custody of the child to maternal grandparents. Mother argues that the 2004 order is void because she did not receive notice of the proceedings and the order does not contain necessary findings. Mother further argues that the juvenile court erred in failing to give her a full hearing. We have determined that the appealed order arose out of dependency and neglect proceedings and, therefore, must be appealed to the circuit court.

In this custody dispute between parents, the Trial Judge awarded the mother attorney’s fees against the father. On appeal, we affirm.

This is a negligence action. Burse filed a complaint against Appellant alleging that Appellant had negligently injured him in an automobile accident. Appellant answered the complaint, in part, by alleging that the accident was caused by the negligence of Appellee. At the time of the accident, Appellee and Burse were standing next to each other while preparing for a Christmas parade. Appellee moved for summary judgment alleging that he owed no duty to Burse and that he was not the cause of the accident. The trial court granted Appellee's motion for summary judgment, and this appeal followed. We affirm the trial court’s decision to grant summary judgment.

The State of Tennessee, proceeding on relation of six individuals and one entity (who, for ease of reference, will collectively be referred to as “the plaintiffs”), sought mandamus in 2002 to force the City of Church Hill (“the City”) to extend a sewer line to the individuals’ homes. The individuals are residents of a neighborhood in Hawkins County that was annexed by the City in 1988. They claim that the City failed to adhere to the plan of services adopted as part of the annexation process, and that the plaintiffs are therefore entitled to mandamus under Tenn. Code Ann. § 6-51-108 (2005). The plan of services adopted in 1988 states that “[a] sanitary sewer system will be provided as soon as economically feasible.” The trial court granted the plaintiffs summary judgment, finding that the long delay in installing a sewer system, which continued at the time of trial, was unreasonable, and that there were no disputed issues of material fact preventing the court from granting mandamus under § 6-51-108. However, the court ordered a trial on the issue of how quickly the City could reasonably install the sewer line. At the conclusion of this limited-purpose trial, the court ordered the City to extend sewer service to the plaintiffs within 16 months. The City appeals. We vacate the trial court’s grant of summary judgment and remand for further proceedings.

This is the second appearance of the dispute between these parties in this Court. This lawsuit has its genesis in a 1995 general sessions court action wherein Plaintiff/Appellee Allied Business Brokers, Inc. (“Allied’) sought damages for breach of contract. The facts and procedural history of the breach of contract action are recited in Allied Business Brokers, Inc. v. Abraham Musa, et al., No. W1999-00378-COA-R3-CV, 2000 WL 33191373 (Tenn. Ct. App. Nov. 22, 2000) (perm. app. denied May 14, 2001), and we find it unnecessary to repeat them here. In Allied Business, we held Defendant Abed Amro (Mr. Amro) was bound by the terms of a brokerage contract that he had signed on behalf of his friend, Defendant Abraham Musa. We remanded the matter to the trial court for entry of a judgment in favor of Allied. Id. at *4. In the meantime, in 1997 Mr. Amro conveyed certain real property to his wife, Nida Amro (Ms. Amro).
In August 2005, Allied filed a complaint styled “Complaint to set aside fraudulent conveyance and to impose a constructive trust” against Mr. Amro and Ms. Amro (“the Amros”) in the Chancery Court for Shelby County. In its complaint, Allied alleged that it was a judgment creditor and that the 1997 conveyance was fraudulent. Allied prayed that the conveyance be set aside and for the imposition of a constructive trust and/or equitable lien in the amount of $17,346.00, plus interest in the amount of $10,407.60. The Amros moved to dismiss the complaint as barred by the statute of limitations under Tennessee Code Annotated § 66-3-310. In October 2007, the trial court entered judgment in favor of Allied setting aside the conveyance as fraudulent. Following denial of the Amros’ motions to reconsider, the trial court entered its last judgment in the matter in January 2008.2 This appeal ensued.

This case arose from the sexual abuse of a minor by a Catholic priest. The plaintiff, the victim, claimed the defendant, the priest’s employer, knew of and concealed the priest’s propensity to commit sex crimes against adolescent boys. Approximately thirty (30) years after the abuse, the plaintiff filed a complaint alleging that such actions constituted outrageous conduct and negligence by the defendant leading to the plaintiff’s abuse. The defendant moved for dismissal of the case for failure to state a claim upon which relief can be granted because the statute of limitations bars such actions brought more than one year after the minor reaches the age of majority. The plaintiff argued the defendant’s fraudulent concealment of plaintiff’s cause of action tolled the statute of limitations. The trial court granted the defendant’s motion to dismiss because the plaintiff had sufficient knowledge to discover his cause of action against the defendant before the statute of limitations expired. We affirm.

This appeal involves the indemnity and insurance provisions of a contract, which must be interpreted according to Georgia law. The trial court found that the defendant had no duty to indemnify or insure the plaintiff for a claim based on the plaintiff’s own negligence. We affirm.

The Trial Court held defendant in contempt. On appeal, we affirm.

The Trial Judge awarded the wife a divorce in this case and ordered the husband to pay periodic alimony in the amount of $5,000.00 a month. The husband has appealed and we affirm the Judgment of the Trial Court, as modified.

Ronald W. Harvey, Jr., was involved in an automobile accident while driving a 1999 Dodge Caravan in the course of his employment with B&W Wholesalers. At the time of the accident, Mr. Harvey and his wife, Cindy Goodson Harvey (collectively “the Harveys”), had an automobile insurance policy with Farmers Insurance Exchange (“Insurance Company”) that listed the Caravan as the covered vehicle. However, the policy included an exclusion for any vehicle “[w]hile used in employment by any person whose primary duties are the delivery of products or services[.]” Insurance Company refused to defend the Harveys in a lawsuit regarding the accident, claiming that the exclusion applies. The Harveys sought a declaratory judgment that the accident was covered by the policy. After a bench trial, the court dismissed the case and declared that the exclusion applied. The Harveys appeal, arguing that “delivery of products or services” was not among Mr. Harvey’s “primary duties,” and that, in any event, Insurance Company should be estopped from denying coverage because it knew how Mr. Harvey intended to use the van and provided coverage anyway. We affirm.