APPELLATE COURT OPINIONS

The petitioner, Torian Benson, has filed a pro se petition to rehear in this case. We note that the petitioner is represented by counsel and pro se petitions are not permitted in such cases. Nevertheless, having considered the merits of the petition to rehear, it is respectfully denied.

This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. _ 5-6- 225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The trial court awarded the 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 the employee 55 percent permanent partial disability for the loss of one arm and one leg, a combined scheduled injury, without separately computing each scheduled injury award.  Defendants insist it was error to award benefits in this manner. Judgment of the trial court is affirmed.

Because I believe that the trial court erred by failing to charge fraudulent use of a driver’s license as a lesser included offense of identity theft, and because I cannot conclude that the error was harmless beyond a reasonable doubt, I would reverse the defendant’s conviction and remand the matter for a new trial.

Plaintiff brought a replevin action against defendant to recover his motor vehicle which had been seized by the defendant. The action was initiated in Sessions Court, but transferred by agreement of the parties to Circuit Court. The trial court entered Judgment on behalf of the plaintiff for $8,500.00, having found that the defendant had sold plaintiff's vehicle. We affirm.

This child custody case presents the following issues: (1) whether the trial court erred in awarding the father custody of the parties' child and (2) whether the trial court erred in ordering the father to pay the mother's attorney fees. We hold that the trial court considered the relevant statutory factors and that the evidence does not preponderate against the trial court's award of custody to the father. We hold that the trial court did not abuse its discretion in ordering the father to pay the mother's attorney fees. Although not raised as an issue on appeal, we note that the father did not request child support from the mother and the trial court did not set child support. We hold that the father did not have the right to waive child support. Accordingly, we affirm the trial court's judgment regarding custody of the child, affirm the award of attorney fees, and remand this cause to the trial court for determination of the mother's child support obligation to the father.

This is a medical battery case. The plaintiff went to the hospital suffering from a kidney stone, and
was admitted for observation. The next morning, the plaintiff was told that he was scheduled to
undergo a procedure to remove the stone. Soon, the defendant physician came to see the plaintiff
and told him that he would be performing an invasive procedure which required significant recovery time. According to the plaintiff, the plaintiff then asked the defendant physician whether his treating urologist had approved of the procedure. The defendant physician responded that he had spoken with the urologist and that the urologist had approved the procedure. The plaintiff then signed a consent form, and the procedure was performed. The plaintiff later learned that the defendant physician had not spoken with his urologist, and that the urologist did not approve the procedure. The plaintiff sued the defendant physician and his medical group for medical battery. The trial court granted summary judgment in favor of the defendants. The plaintiff now appeals. We reverse, finding that a genuine issue of material fact exists as to whether the plaintiff’s consent to surgery was vitiated by the defendant physician’s alleged misrepresentation of fact.
 

A Shelby County jury convicted the defendant, Lawrenzo Menton, of two counts of aggravated robbery and two counts of kidnapping, and the trial court sentenced him to twelve years for each robbery with the second count to be served consecutively to the first and six years for each kidnapping with both counts to be served concurrently with each other and with the second robbery count for an effective total sentence of twenty-four years in the Department of Correction. On direct appeal, the defendant contended, among other things, that the trial court erred in ordering consecutive sentencing. This court agreed and remanded the case to the trial court for a determination of the basis for the imposition of consecutive sentences. State v. Lawrenzo Menton, No. W2002-00267-CCA-R3-CD, Shelby County, slip op. at 1 (Tenn. Crim. App. July 2, 2003), app. denied (Tenn. Dec. 15, 2003). At the resentencing hearing, the trial court once again ordered that the defendant serve his robbery sentences consecutively. The defendant appeals, claiming that the trial court abused its discretion in ordering consecutive sentencing and that the trial court’s imposition of consecutive sentences violates the rule announced in Blakely v. Washington, 542 U.S. __, 124 S. Ct. 2531 (2004). We hold that the record is insufficient to justify the trial court’s imposition of consecutive sentences and that because the defendant’s case is still on direct appeal, plain error requires us to modify the defendant’s sentences in light of Blakely to eight years and six months for each aggravated robbery conviction and three years and six months for each kidnapping conviction.

The appellant, Barabbas A. Brown, appeals the Knox County Criminal Court's dismissal of his motion to correct pre-trial jail credits. The appellant argues that the trial court erred by not enforcing its order of judgment granting him pre-trial jail credits. Finding no merit to the appellant's contentions, we affirm the trial court's decision.

This is a post-divorce alimony case. The parties were divorced in 1995 and the mother was awarded rehabilitative alimony for seven years. In 2003, the trial court extended the rehabilitative alimony until the youngest of the parties’ four children graduated from high school. The extension of alimony was based on the demands of being the primary residential parent for the parties’ four young sons, two of whom were found to have learning disabilities. The father appealed the extension of rehabilitative alimony. We affirm.
 

I join with the majority in concluding that the record is insufficient to justify the imposition of consecutive sentences and that the defendant’s length of sentences requires modification.

The petitioner, Dwayne Cook, appeals the trial court's denial of his motion to reconsider the denial of his request to set aside his guilty plea and his alternative petition for writ of error coram nobis. The State has filed a motion requesting that this Court affirm the trial court's action pursuant to Rule 20, Rules of the Court of Criminal Appeals. The trial court properly denied relief as the pleadings were untimely filed and without merit. Accordingly, the judgment of the trial court is affirmed.

This is an appeal as of right from a conviction of second degree murder. The Defendant, Douglas V. Killins, was indicted for first degree murder and found guilty by jury verdict of the lesser-included offense of second degree murder. The trial court sentenced the defendant as a Range II violent offender to thirty-eight years to be served in the Department of Correction. On appeal, the Defendant claims there was insufficient evidence for the jury to find him guilty of second degree murder. We affirm the judgment of the trial court.

In this action to terminate the parental rights of the mother, ABB, to LJB, Jr., and EJB, the Juvenile Court ordered ABB's rights terminated, and the mother has appealed. We affirm.

Defendant, Ronald Bowman, was indicted for identity theft with the intent to avoid a court appearance. Defendant was convicted by a jury of the charged offense. Defendant was sentenced as a Range I standard offender to serve three years in the workhouse. In this appeal, Defendant argues that: (1) the trial court erred by not instructing the jury as to any lesser included offenses of identity theft; and (2) the evidence is insufficient to support his conviction. After a thorough review, we affirm the judgment of the trial court.

The Defendant, Tarus A. Sircy, appeals from the trial court's denial of his petition seeking habeas corpus relief. The State has filed a motion requesting that this Court affirm the trial court's denial of relief pursuant to Rule 20, Rules of the Court of Criminal Appeals. The State's motion is granted. The judgment of the trial court is affirmed.

In 1973, Appellant, Jessie D. McDonald, was convicted, following a jury trial, of the offense of obtaining property by false pretenses. Appellant filed a petition for writ of habeas corpus in the Criminal Court of Davidson County, Tennessee in May 2004, attacking his conviction. According to his petition, the sentence for the conviction expired in May 1979. Upon direct appeal from the conviction, the Court of Criminal Appeals reversed the conviction. However, the Supreme Court of Tennessee reversed the Court of Criminal Appeals and reinstated the judgment. See State v. McDonald, 534 S.W.2d 650 (Tenn. 1976). Appellant has appealed from the trial court's summary dismissal of his petition for writ of habeas corpus relief. The State has filed a motion for this court to affirm the dismissal pursuant to Rule 20 of the Rules of the Tennessee Court of Criminal Appeals. Finding merit in the motion, we grant same and affirm the judgment of the trial court.

In this case we are asked to construe several instruments related to a parcel of real property. In 1976, Shelby County obtained title to a parcel of property conveyed out of a larger tract and proceeded to construct a water tower on the property. From 1976 to 1982, Shelby County used a gravel road traversing the adjacent lot retained by the original grantor to gain access to the water tower. In 1982, the original grantor proceeded to executea document purporting to grant Shelby County an easement over the gravel road. The original grantor subsequently conveyed the adjacent parcel to a third party, Highway 64 Partners. In 1995, Shelby County entered into a lease agreement with Verizon, allowing Verizon to install a cellular communications antenna on the water tower and granted Verizon an easement over the gravel road. Highway 64 Partners protested Verizon’s use of the gravel road. Verizon filed a declaratory judgment action seeking a declaration of the parties’ rights County, and denied summary judgment to Highway 64 Partners. We affirm.
 

The defendant, Immanuel Eldridge Harney, pled guilty to six counts of sale of one-half gram or more of cocaine, a Class B felony, and pursuant to a plea agreement, the Giles County Circuit Court sentenced him to twelve years incarceration for five of the counts and three years incarceration for the sixth count. The court ordered that the defendant serve one of his twelve-year sentences consecutively to the other four and that he also serve the three-year sentence consecutively to the five twelve-year sentences for an effective sentence of twenty-seven years in the Department of Correction (DOC). The defendant appeals from the Giles County Circuit Court order reducing his sentences by six months, claiming that the trial court abused its discretion in failing to grant him a greater reduction. The state appeals, contending that the trial court was without jurisdiction to reduce the defendant's sentence. We hold the trial court was without jurisdiction to reduce the defendant's sentence. We reverse the judgment of the trial court and remand the case for the entry of a corrected judgment.

The petitioner, Ali Alvdu Mohammad, appeals the trial court's denial of post-conviction relief. The issues presented for review are whether the petitioner's lea of guilt was knowingly and voluntarily entered and whether the petitioner was denied the effective assistance of counsel. The judgment is affirmed.

The Petitioner, Derrick Taylor, was indicted for, and pled guilty to, aggravated assault. The trial court sentenced him to seven years, as a multiple offender, at thirty-five percent. The Petitioner filed a pro se petition for post-conviction relief, which the post-conviction court dismissed. The Petitioner now appeals contending that the post-conviction court erred when it dismissed his petition because: (1) his guilty plea was not knowingly and voluntarily entered; and (2) he received ineffective assistance of counsel. Finding no error in the judgment of the post-conviction court, we affirm its dismissal of the Petitioner’s petition for post-conviction relief.

In 1987, a billboard advertising company obtained a permit to construct a billboard, approximately seventy-five (75) square feet in size, along a stretch of roadway in Hendersonville, Tennessee. At the time of issuance, the applicable zoning ordinance stated the billboard could not exceed eighty (80) square feet in size. Later that same year, the city passed a new zoning regulation providing that billboards could no longer be erected in the area as a primary use. Instead, billboards could only be erected as an accessory use to another primary use on the premises. The new zoning ordinance did not change the maximum allowable size of a billboard, which remained at eighty (80) square feet. Subsequent to the enactment of the new ordinance, the billboard company filed for a permit, pursuant to section 13-7-208 of the Tennessee Code, seeking to demolish the existing billboard and construct a new billboard, at 220 square feet in size, in its place. When the city denied the permit, the billboard company filed an action in the chancery court seeking a declaratory judgment, writ of mandamus, and permanent injunction. The billboard company also filed a motion for summary judgment, which the chancery court granted. The city filed an appeal to this court. We reverse.

Appellant, an insurance company, appeals from trial court’s judgment finding that the
business pursuit and home care service exclusions to personal liability coverage in a homeowners insurance policy did not exclude coverage for accidental death of child who drowned in a bathtub while in the care of Appellee. Trial court found that Appellee’s arrangement to care for decedent was not a business pursuit or home care service within the meaning of the insurance contract, but rather was an informal type of babysitting motivated by love and/or favor for deceased child’s parents. Appellant contends that motivation by profit was irrelevant to whether Appellee was engaged in a business pursuit or home care service, that the evidence preponderates against the trial court’s fact findings, and that trial court erred in finding for Appellees. We reverse the judgment of the trial court, finding that the business pursuit and home care service exclusions do bar coverage under the homeowners policy.
 

I write separately to dissent in part from the majority opinion. I agree with the majority’s
analysis of the policy at issue, but disagree with the majority’s conclusion that the evidence
preponderates against the trial court’s finding that the childcare arrangement was not conducted for profit. I certainly agree that the discrepancies in Ms. Williams’ testimony in her two depositions and her trial testimony “suggest . . . deliberate obfuscation” and, if I were the trial judge, I would feel constrained to hold as the majority does, that Ms. Williams’ later testimony was an effort to avoid the consequences of the exclusions from coverage. I am not, however, the trial judge. Here, the trial court’s credibility determination is not based solely on the deposition testimony, ascertained from the transcript. It is also based on Ms. Williams’ testimony at trial, derived from the trial judge’s observation of her demeanor and manner in the courtroom. Given our standard of review for such a credibility determination, I feel compelled, albeit reluctantly, to affirm the trial court’s finding of fact that the childcare arrangement was not conducted for profit.
On this basis, I dissent in part from the majority opinion. In all other respects, I fully concur.

This appeal involves the Juvenile Court's termination of the parental rights of C.D.W. ("Mother") to her three oldest children. After a trial, the Juvenile Court held there was clear and convincing evidence that Mother had failed to substantially comply with the terms of her permanency plans, and that the conditions present at the time the children were removed had not been remedied and it was unlikely these conditions would be remedied in the near future. The Juvenile Court also held there was clear and convincing evidence that termination of Mother's parental rights was in the children's best interest. We affirm the judgment of the Juvenile Court.

This appeal arises out of a shareholder derivative action brought by Appellant in behalf of Community Bank of the Cumberlands against the Appellees, the directors and chief financial officer of the Bank. The trial court granted the Appellee's motion to dismiss and further awarded Appellees their attorney's fees and the Bank its expenses for a Special Litigation Committee. Appellant seeks review by this Court, and, for the following reasons, we affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.