APPELLATE COURT OPINIONS

I concur with the legal principles set forth in the majority opinion and particularly with the recognition of the importance of affording a parent an opportunity to request appointed counsel, and when appropriate, a hearing and due inquiry on the request for appointed counsel in dependent and neglect proceedings. I, however, respectfully dissent, believing the facts, particularly those demonstrating the irresponsible acts and omissions of David H. and Mary Ellen H. in seeking appointed counsel and then retaining separate counsel, are sufficient to affirm the trial court.

This workers’ compensation appeal has been referred to the Special Workers’ Compensation
Appeals Panel of the Tennessee Supreme Court in accordance with Tennessee Code Annotated
section 50-6-225(e)(3) for hearing and reporting to the supreme court of findings of fact and
conclusions of law. The trial court awarded Plaintiff 54 percent permanent partial disability as a
result of sustaining a latex allergy injury. Defendant contends the evidence established that Plaintiff did not have a latex allergy condition and if she did, her last employer would be responsible for compensation under the last injurious exposure rule. We affirm the judgment.

After a hearing, the Circuit Court declared seven children to be dependent and neglected and determined that their parents had committed severe child abuse. The parents claim on appeal that the court erred by refusing their request that counsel be appointed to represent them at the hearing.  After carefully reviewing the record, we find that the trial court failed to conduct a sufficient inquiry to determine whether or not the parents were financially able to retain their own counsel, and we accordingly vacate the order concluding that the children were dependent and neglected.

The defendant, Michael Forrest Bandy, appeals his convictions of first degree felony murder and aggravated child abuse, a Class A felony. The sole issue on appeal is the sufficiency of the evidence.  Upon review, we conclude that the evidence is sufficient to support the convictions and affirm the same.

I adhere to my longstanding view that a “preponderance of the evidence” standard and a
“clear and convincing evidence” standard are incompatible with each other and cannot be reconciled either in the trial court or in appellate courts. The effort to make these standards compatible, as asserted in Ray v. Ray, 83 S.W.2d 726 (Tenn.Ct.App.2001), and its progeny are in my view incorrect for reasons stated at length in Estate of Acuff v. O’Linger, 56 S.W.3d 527 (Tenn.Ct.App.2001) and In re Z.J.S. and M.J.P., No. M2002-02235-COA-R3-JV, filed June 3, 2003 (Tenn.Ct.App.2003-Cain, concurring).

Joan Oates (“Plaintiff”) was employed by the Chattanooga Publishing Company (“Defendant”) for approximately twenty-three years. In January of 2004, Plaintiff was observed on Defendant’s security camera making obscene gestures with her middle finger toward the camera and then covering the security camera with a cup for a period of time. Defendant terminated Plaintiff’s employment. Plaintiff filed this lawsuit alleging that she was terminated because of a disability.  Plaintiff also claimed that she was subjected to a hostile work environment and malicious harassment while employed by Defendant. Plaintiff also sued for intentional and/or negligent infliction of emotional distress. The Trial Court granted Defendant’s motion for summary judgment on all of Plaintiff’s claims. Plaintiff appeals, and we affirm.

This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Tennessee Supreme Court in accordance with Tennessee Code Annotated section 50-6-225(e)(3) for hearing and reporting to the supreme court of findings of fact and conclusions of law. The trial court awarded plaintiff sixty (60) percent permanent, partial vocational disability to the right leg. On appeal, the employer contends that the employee's injury did not arise out of his employment and is therefore not compensable. The employer alternatively argues that the trial court's permanent, partial vocational disability award is excessive. We affirm the judgment of the trial court.

This appeal involves the parental rights of the biological parents of seven minor children. After the children had been removed from their biological parents’ custody for approximately one year, the Tennessee Department of Children’s Services filed a petition in the Circuit Court for Perry County seeking to terminate the parental rights of the biological parents. The trial court conducted a bench trial and then entered an order terminating the biological parents’ parental rights because the conditions that caused the children to be removed from the parents’ custody continued to persist and because the parents had committed severe child abuse. Both parents appealed. We have determined that the record contains substantial and material evidence supporting the trial court’s conclusions that the biological parents’ conduct provides substantive grounds for terminating their parental rights and that the termination of the biological parents’ parental rights is in the children’s best interests.

James L. Williams, Brenda G. Williams, Charles Roberson, and Marjorie Roberson (“Plaintiffs”) sued Jordan Lee Fox (“Defendant”) claiming, in part, that Defendant was constructing a mobile home/modular home in the Oma Lee Williams subdivision in violation of the subdivision restrictions. Plaintiffs sought, among other things, a restraining order prohibiting Defendant from constructing and completing the mobile home/modular home. The case proceeded to trial. The Trial Court entered an order finding and holding, inter alia, that the structure in question is a modular home and that under existing case law Defendant was in violation of the subdivision restrictions.  The Trial Court awarded Plaintiffs a permanent injunction and ordered Defendant to remove the structure. Defendant appeals to this Court claiming, in part, that the existing case law upon which the Trial Court based its decision dealt with double wide or manufactured homes, not modular homes. We affirm.

This workers’ compensation appeal has been referred to the Special Workers’ Compensation
Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. § 50-6-225(e)(3) for
hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The trial
court dismissed the complaint by sustaining a motion for summary judgment. The court held the
employee’s injury did not occur in the course of employment. The judgment is reversed and the case is remanded.

Janis Sue Watson and Albert Eugene Brooks, the co-defendants, were convicted of first degree premeditated murder and conspiracy to commit first degree murder, a Class A felony. Each co-defendant received concurrent sentences of life in prison and twenty years, respectively. The co-defendants’ consolidated appeals address both the convictions and sentences. Having found no reversible error, the convictions and sentences of both co-defendants are affirmed.

This workers’ compensation appeal has been referred to the Special Workers’ Compensation
Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. § 50-6-225(e)(3) for
hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The trial
court awarded plaintiff 100 percent permanent disability. On appeal, the employer contends the
evidence does not support a finding of total disability and that the trial court was in error in accepting the testimony of a doctor who looked at the Second Edition of the AMA Guides in an attempt to give a numerical number of impairment for a Class 2 psychiatric injury when the Fifth Edition of the Guides did not contain a numerical rating. We affirm the judgment.

This is not the first time this case has been on appeal. In this appeal, we are asked to determine if the chancery court erred when it found that an insured individual was made whole by a settlement agreement with a third party tortfeasor so as to require the insured to reimburse his insurer.  Specifically, Appellant contends that the chancery court erred in finding that the insured was not made whole because it failed to use the formula method used by federal courts for determining whether an insured is made whole and failed to engage in an analysis of the dollar amounts of the insured’s recovery and losses. We reverse and find that the insurer is entitled to reimbursement from the insured.

The trial court awarded Petitioner child support for one child in accordance with the child support guidelines. Respondent appeals, asserting the trial court erred by failing to deviate from the child support guidelines. We affirm.

I respectfully dissent from majority’s decision to affirm the Trial Court’s grant of summary judgment. I would reverse the Trial Court’s grant of summary judgment.

The defendant, Albert Jones, was convicted by a Shelby County Criminal Court jury of first degree premeditated murder and sentenced to life imprisonment. In this direct appeal, he argues that the evidence was insufficient to sustain a first degree murder conviction and the trial court erred by denying his request for a special jury instruction on the State’s burden of proof. Finding no error, we affirm the judgment of the trial court.

Tennessee Farmers Life Reassurance Company (“Tennessee Farmers”) brought this interpleader action seeking judicial guidance as to the person or persons entitled to receive benefits under a policy of insurance insuring the life of Brenda Gail Langley (“the deceased”). The deceased designated three of her four children and a grandchild as the beneficiaries of the policy; however, prior to the deceased’s death, her sister, Linda Sue Rose, acting under her authority as attorney in fact for the deceased, changed the beneficiary of the policy to herself. After the death of the deceased, Ms. Rose, the three children, and the deceased’s grandchild, Ethan E. Langley, all asserted rights to the proceeds of the subject policy. The trial court granted summary judgment to the deceased’s children and grandchild, finding that they were entitled to the proceeds because – as found by the trial court – Ms. Rose did not have the authority under the deceased’s power of attorney to change the beneficiary on the policy. Ms. Rose appeals. We affirm.

The petitioner, Shon Maurice Pierce, appeals the Dyer County Circuit Court’s denial of his petition for post-conviction relief for second degree murder and resulting twenty-year sentence. He contends that he received the ineffective assistance of counsel because his trial attorney allowed him to plead guilty before the trial court held a hearing on his motion to suppress his confession. Upon review of the record and the parties’ briefs, we affirm the judgment of the post-conviction court.

This state appeal, initially filed as a Tennessee Rule of Appellate Procedure 3 appeal, is deemed by this court an interlocutory appeal pursuant to Tennessee Rule of Appellate Procedure 10. The state seeks review of the Knox County Criminal Court’s determination that, in the on-going driving under the influence (DUI) prosecution of the defendant, Ricky Lynn Norwood, a 1997 DUI conviction may not be used to enhance punishment. Because the record and the applicable law support the trial court’s ruling, we affirm the order.

We granted the defendant permission to appeal to consider whether the exact copy requirement of Tennessee Rule of Criminal Procedure 41(c)1 applies to an affidavit that has been incorporated by reference into a search warrant. Upon consideration, we hold that the exact copy requirement expressly applies to search warrants only and does not apply to incorporated affidavits. The record supports the trial court’s finding that the defendant a copy of the search warrant was “identical in every respect” to the original search warrant. Furthermore, even if the exact copy requirement expressly applied to affidavits, we would conclude, as did the Court of Criminal Appeals, that the insignificant differences between the original affidavit and the defendant’s copy of the affidavit do not warrant suppression of the evidence. For these reasons, we affirm the judgments of the trial court and Court of Criminal Appeals.

Defendant, Jon A. Engle, was convicted of DUI and sentenced to eleven months and twenty-nine days, with all but ten days suspended, and a fine of $1,500 and costs. He appealed, arguing that the arresting officers did not have reasonable suspicion to stop his vehicle. However, Defendant filed neither a motion to suppress the stop in the trial court nor a motion for new trial. Accordingly, we conclude that this issue is waived and affirm the judgment of the trial court.

We accepted this interlocutory appeal pursuant to Rule 9 of the Tennessee Rules of Appellate Procedure to determine the enforceability of the employee’s prospective waiver of her reconsideration rights in a workers’ compensation settlement agreement. We conclude that the waiver provision is contrary to both the plain language of Tennessee Code Annotated section 50-6-114(a) and public policy and, therefore, is unenforceable. Accordingly, we affirm the judgment of the trial court as modified and remand the case to the trial court for further proceedings consistent with this opinion.