APPELLATE COURT OPINIONS

The defendant, Raymond McNeil, appeals from his Williamson County Circuit Court conviction of Class D felony evading arrest, alleging that the evidence was insufficient and that the trial court erred in the admission of certain evidence at trial. The defendant challenges neither his conviction of driving on a revoked license nor his 12-year effective sentence. Discerning no error, we affirm the judgments of the trial court.

I would affirm the judgment of the Court of Criminal Appeals, and must, therefore, respectfully dissent from the majority’s conclusion that the Petitioner has failed to establish grounds for habeas corpus relief. Although the majority has performed an admirable analysis of the present cases on the subject, I am of the opinion that the various principles derived from these opinions are in conflict and, absent a reconciliation, the Petitioner is entitled to relief. Because the record of the proceedings demonstrates that after the jury verdict, the trial court directly contravened statute by imposing a Range III, persistent offender sentence, I would grant habeas corpus relief and remand to the sentencing court for the imposition of a Range II sentence.

We granted the plaintiff’s application for permission to appeal in this wrongful death case to determine whether the trial court properly granted summary judgment to each of the defendants. The Court of Appeals affirmed the grant of summary judgment. Although the parties have raised  several issues in this appeal, the central issue is the nature of the legal duty, if any, owed by the defendants to the plaintiff’s decedent. The decedent was socializing and consuming alcohol with the defendants. While riding in a four-door pick-up truck with the defendants, he became ill. The defendants stopped the truck on the side of an interstate highway so the decedent could vomit. After resuming the trip, the decedent rode in the bed of the truck and, for reasons unknown, exited it. After exiting the truck, he was struck by two vehicles and subsequently died. Upon careful review of the record and applicable authority, we conclude that there are genuine issues of material fact as to whether the defendants placed the decedent in the bed of the truck. Similarly, we conclude that there are genuine issues of material fact as to whether the decedent was helpless and whether the defendants took charge of him. Lastly, we hold that none of the defendants stood in any special relationship with the plaintiff’s decedent and consequently they did not assume any affirmative duty to aid or protect him. We therefore reverse the judgment of the Court of Appeals and remand this case to the trial court for further proceedings.

The trial court dismissed this medical malpractice case after granting motions to exclude the testimony of both of the plaintiffs’ expert witnesses. Based upon our conclusion that the trial court did not abuse its discretion in excluding the testimony of either expert witness, we affirm the decision of the trial court.

A Stewart County Circuit Court jury convicted the defendant, Jason Clinard, of first degree premeditated murder and imposed a sentence of life imprisonment. See T.C.A. §§ 39-13-202(a)(1); -204 (2006). In this appeal, the defendant asserts that the trial court erred by (1) not suppressing photographs of the victim, (2) allowing the State an independent psychological examination of the defendant, (3) failing to disqualify the District Attorney General’s Office, and (4) following the statutory sentencing scheme that resulted in the defendant’s life sentence. Discerning no error, we affirm the judgment of the trial court.

This domestic relations action requires us to construe a provision of the parties’ 1993 divorce decree with respect to the division of defendant/Appellant David P. Lout’s (Mr. Lout’s) military retirement pay. The trial court construed the 1993 decree as requiring Mr. Lout to pay to Plaintiff/Appellee Vickie F. Lout Hudson (Ms. Hudson), Mr. Lout’s former wife, an amount equivalent to 28 percent of his military retirement pay. The trial court calculated this amount as onehalf the retirement pay received by Mr. Lout, multiplied by a fraction representing the number of years the parties were married divided by the number of years Mr. Lout served in the military. The trial court also ordered Mr. Lout to pay arrearages and awarded Wife her attorney’s fees as damages predicated on a finding of contempt. Mr. Lout appeals; we affirm the trial court’s construction of  the parties’ 1993 decree of divorce, vacate the finding of contempt and award of attorney’s fees, and remand.

This appeal involves the efforts of the estate of a twenty-five-year-old woman who contracted mesothelioma to recover damages for her death. While she was alive, the woman filed a negligence action against her father’s employer, alleging that the employer had negligently permitted her father to wear his asbestos-contaminated work clothes home from work, thereby regularly and repeatedly exposing her to asbestos fibers over an extended period of time. After the woman died, the Circuit Court for Blount County permitted her father to be substituted as the personal representative of her estate. The employer moved for a judgment on the pleadings on the narrow ground that it owed no duty to its employee’s daughter. The trial court granted the motion. The deceased woman’s father appealed the dismissal of his daughter’s wrongful death claim. The Tennessee Court of Appeals reversed the trial court. Satterfield v. Breeding Insulation Co., No. E2006-00903-COA-R3-CV, 2007 WL 1159416 (Tenn. Ct. App. Apr. 19, 2007). We granted the employer’s application for permission to appeal to determine whether the deceased woman’s  omplaint can withstand a motion for judgment on the pleadings. We have determined that it does because, under the facts alleged in the complaint, the employer owed a duty to those who regularly and for extended periods of time came into close contact with the asbestos contaminated work clothes of its employees to prevent them from being exposed to a foreseeable and unreasonable risk of harm. Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Appeals Affirmed; Case Remanded
 

Colonial Pipeline Company filed suit for declaratory judgment, challenging the constitutionality of specified portions of the state tax code and seeking an injunction as to the enforcement of those provisions. The Chancery Court dismissed the action, holding that the company had failed to exhaust its administrative remedies. The Court of Appeals reversed and remanded. We granted an application for permission to appeal and, after consideration of the issues, hold that (1) a party making a constitutional challenge to the facial validity of a statute need not exhaust its administrative remedies, and that (2) the doctrine of sovereign immunity does not bar a suit for declaratory judgment asking state officers to be enjoined from enforcing such a statute so long as the action does not seek money damages. We, therefore, affirm the judgment of the Court of Appeals.

The defendant, Brian Davidson, was convicted by a Shelby County Criminal Court jury of one count of manufacturing methamphetamine, two counts of possession of methamphetamine with the intent to sell and/or deliver, one count of possession of anhydrous ammonia, one count of possession of marijuana, two counts of possession of Hydrocodone, and two counts of possession of Alprazolam. After merging the manufacturing and possession of methamphetamine convictions, the possession of Hydrocodone convictions, and the possession of Alprazolam convictions, the trial court sentenced the defendant to five years for manufacturing methamphetamine, eighteen months for possession of anhydrous ammonia, and eleven months, twenty-nine days for each of the convictions for possession of Hydrocodone, Alprazolam, and marijuana, with the sentences to be served concurrently to each other but consecutively to the defendant’s sentences in a federal case. The defendant argues on appeal that the trial court erred in denying his motion to dismiss based upon a violation of the speedy trial provision of the Interstate Compact on Detainers, in denying his motion to suppress a detective’s in-court identification of him, in denying his discovery request for the impeaching convictions of his codefendant, and in ordering that he serve his sentences consecutively to his federal sentences. Having reviewed the record and found no error, we affirm the judgments of the trial court.

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) (Supp. 2007) for a hearing and a report of findings of fact and conclusions of law.  In a previous appeal, the Supreme Court of Tennessee affirmed an order requiring the employer to reimburse a third-party insurer for payments made for medical care. The judgment was paid. The insurer sought post-judgment interest on the amount, and the trial court awarded that interest. The employer has appealed, arguing that the trial court erred by awarding post-judgment interest for medical expenses. We agree and reverse the judgment.

I fully concur in the majority’s conclusion that Alcoa owed a duty to Ms. Satterfield to take reasonable steps to prevent her from suffering harm as a result of the risks created by the operation of Alcoa’s facility. I write separately to express my belief that any discussion of foreseeability in the context of duty encroaches upon the role of the finder of fact. In doing so, I will explain the considerations that I believe are relevant to a duty analysis. This Court has previously stated that the existence of a duty depends upon the presence

This matter is before the court upon the state’s motion to affirm the judgment of the post-conviction court by memorandum opinion pursuant to Rule 20 of the Rules of the Court of Criminal Appeals.  The petitioner, Barry L. Price, appeals the post-conviction court’s dismissal of his petition for post-conviction relief and argues that he received the ineffective assistance of counsel. Upon review of the entire record, including petitioner’s Traverse To Appellee’s Answers filed on July 29, 2008, we are persuaded that the post-conviction court did not err in dismissing the petitioner’s post-conviction petition. This case meets the criteria for affirmance pursuant to Rule 20 of the Rules of the Court of Criminal Appeals. Therefore, we grant the state’s motion, and the judgment of the post-conviction court is affirmed.

In this wrongful death action the Trial Court granted defendants summary judgment on the grounds that plaintiff was not a proper party to maintain the action. On appeal, we affirm.

The defendant, Clarence Dodson, was convicted by a Shelby County jury of aggravated burglary, Class C felony, and theft of property under $500, a Class A misdemeanor. He was subsequently sentenced to concurrent sentences of fifteen years and eleven months, twenty-nine days for the respective convictions. On appeal, he raises two issues for our review: (1) whether the evidence is sufficient to support the aggravated burglary conviction; and (2) whether the trial court erred in allowing prior convictions for aggravated burglary and misdemeanor theft of services to be used  or impeachment purposes. Following review of the record, we find no error and affirm the judgments of convictions.

The petitioner, Kelvin Jermaine Dowell, appeals the post-conviction court’s denial of his petition for post-conviction relief, arguing that his trial counsel provided ineffective assistance by presenting two inconsistent defense theories at his trial. Following our review, we affirm the denial of the petition.

The defendant, Robert Bonds, was convicted of aggravated burglary, a Class C felony, and sentenced as a Range III offender to fifteen years in confinement. On appeal, the defendant argues that the evidence was insufficient to support his conviction. Following our review of the parties’ briefs, the record, and the applicable law, we affirm the judgment of the trial court.

After more than eighteen years of marriage, Patsy Wicks Dawson (“Wife”) sued Isaac Dale Dawson (“Husband”) for divorce. After a trial, the Trial Court entered an order, inter alia, awarding Husband a divorce and distributing the marital property. Wife appeals raising an issue regarding the distribution of the marital property. We vacate the distribution of the marital property and remand this case to the Trial Court to value items of marital property as necessary to effectuate an equitable division of marital property under the facts of this case such that Husband receives 60% and Wife receives 40%. The remainder of the Trial Court’s Final Decree of Divorce is affirmed.

The defendant, McKinley Wright, appeals as of right his Shelby County jury conviction for unlawful possession with the intent to sell or deliver more than 15 grams of heroin, a Class B felony. ¹The trial court sentenced the defendant to eleven years as a Range I, standard offender to be served consecutively to a previously imposed sentence. On appeal, the defendant contends that the evidence is insufficient to support his conviction, that the trial court improperly admitted evidence without establishing the chain of custody, that the trial court improperly admitted testimony regarding the timing of testing controlled substances recovered by Shelby County authorities, that the trial court erred in failing to instruct the jury regarding facilitation, that the trial court imposed an excessive sentence, and that all of the cumulative errors deprived the defendant of his right to a fair trial. Following our review, we affirm the judgment of the trial court.

Following a bench trial in the Houston County Circuit Court, the defendant, Chad Lewis Monette, was convicted of one count of aggravated sexual battery, a Class B felony, as a lesser-included offense of rape of a child. He was subsequently sentenced to eight years in the Department of Correction. On appeal, the defendant contends that his conviction should be reversed because aggravated sexual battery is not a lesser-included offense of rape of a child. He further challenges the admission and consideration of certain testimony and exhibits introduced as evidence at trial. Following review of the record, we conclude that aggravated sexual battery is a lesser-included offense of rape of a child; thus, no error occurred in the conviction. With regard to the evidentiary issues, we conclude that the defendant has waived consideration of the issues by his failure to contemporaneously object at trial, his failure to raise the issues in his motion for new trial, or his failure to cite to legal authority on appeal. Because the alleged evidentiary issues do not rise to the level of plain error, we decline review. Accordingly, the judgment of conviction is affirmed.

In October 2005, the Shelby County Grand Jury indicted the defendant, Kevin Swift, on two counts
of aggravated robbery, a Class B felony. Following a jury trial in Shelby County Criminal Court,
the defendant was convicted on both counts of the indictment; however, upon stipulation of the
parties one of the defendant’s convictions was reduced to the lesser included offense of aggravated assault, a Class C felony. The trial court sentenced the defendant to eleven years as a Range I, standard offender on the aggravated robbery conviction and nine years as a Range II, multiple offender on the aggravated assault conviction. The trial court ordered these sentences to be served consecutively. The defendant appeals, asserting that: (1) the evidence produced at trial was insufficient to support his aggravated robbery conviction; (2) the sentences imposed for both
sentences were excessive in that they were enhanced based on factors not found by the jury beyond a reasonable doubt; and (3) the trial court improperly imposed consecutive sentences. After reviewing the record, we affirm the judgments of the trial court.

The defendant, Charles Ricky Pipkin, Jr., pled guilty to charges of aggravated burglary and theft over $500. He also pled guilty in a separately charged case to initiation of a process to manufacture methamphetamine and possession of methamphetamine with the intent to deliver more than .5 grams. As a condition of his guilty pleas, the defendant properly reserved several certified questions of law, challenging the legality and validity of the search warrant. Specifically, the defendant argued that the affidavit for the search warrant did not satisfy both prongs of the Aguilar-Spinelli test and therefore failed for lack of probable cause. He further argued that  information contained in the warrant was stale and insufficient. Finally, the defendant argued that if the search warrant was invalid in the first case, then any evidence and statements used against him in the second case must also be suppressed as fruits of an illegal search. Following our review of the parties’ briefs, the record, and the applicable law, we reverse the judgments of the trial court and dismiss the defendant’s convictions.

The petitioner, Michael Derrick Huskins, appeals from the denial of his petition for post-conviction relief wherein he challenged his 2006 Polk County Criminal Court conviction of felony murder. In this appeal, the petitioner contends that his guilty plea was involuntary and was the result of the ineffective assistance of his trial counsel. Discerning no error, we affirm the judgment of the post-conviction court.

The defendant, Leman Earl Russell, Jr., entered a plea of guilty, in January 2007, to three counts of selling a Schedule II controlled substance under .5 grams (Class C felony) and one count of possession of a Schedule II controlled substance over .5 grams with intent to sell or deliver (Class B felony), in exchange for a sentence of split confinement. For each Class C felony conviction, he was sentenced to six months in the county jail and four years on community corrections, with each sentence to be served concurrently. For the Class B felony, he was sentenced to six months in the county jail to be followed by nine years and five months on community corrections, also concurrent with the other sentences, for a total effective sentence of nine years and eleven months (six months in confinement followed by nine years and five months on community corrections). Here, the defendant appeals the revocation of his community corrections sentence. After review, we conclude that the trial court properly revoked the defendant’s community corrections sentence.

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) (Supp. 2007) for a hearing and a report of findings of fact and conclusions of law.  The employee, Juanita Kirk, sustained a compensable injury and her claim was settled. The settlement was approved by the trial court based upon an affidavit executed by the employee.  Several months later, Ms. Kirk filed a motion pursuant to Rule 60.02 of the Tennessee Rules of Civil Procedure, seeking to set aside the settlement on the basis of fraud, that it was approved without Ms. Kirk having personally appeared before the court, and that it did not afford to Ms. Kirk substantially the benefits to which she was entitled. After an evidentiary hearing, the trial court found that Ms. Kirk had not sustained her burden with regard to the issue of fraud and denied the motion. She has appealed from that order. Although we agree that the evidence supports the trial court’s conclusion on the issue of fraud, we find that there were “other reason[s] justifying relief from the operation of the judgment.” Tenn. R. Civ. Proc. 60.02(5). We therefore reverse the trial court’s judgment and remand the case for additional proceedings.

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 was struck on the back by a heavy bundle of paper. Her injury was accepted as compensable. She was examined and treated by three authorized doctors, all of whom opined she had no permanent impairment. She sought additional medical treatment, which ultimately led to surgery to repair her sacro-iliac joints. The trial court found that the surgery was related to her work injury, and awarded 50% permanent partial disability (“PPD”) to the body as a whole. Employer has appealed, contending that the medical evidence preponderates against the trial court’s findings. We affirm the judgment.