APPELLATE COURT OPINIONS

I concur with the result reached by the majority, but write separately to more closely examine various statutes which are applicable, either directly or indirectly, to the issue in this case. The source of the contested issue is Tennessee Code Annotated section 39-17-1322 which provides in full as follows:

I respectfully dissent from the majority’s conclusion that Dr. Victor A. Pestrak’s report was properly admitted and that this Court’s interpretation of Rule 706 of the Tennessee Rules of Evidence in Dover v. Dover, 821 S.W.2d 593, 595 (Tenn. Ct. App. 1991), is too rigid. I submit that the majority's decision ignores the strict requirements of Rule 706 and opens the door for abuse of that rule.

This is a negligence case. The plaintiff, a female high school student, was being verbally harassed by a male student. The plaintiff complained repeatedly to a school administrator, who assured her that he would take care of the situation. The male student’s taunts did not stop and he threatened to beat up the plaintiff. The school administrator was told about the threat and took no action. Subsequently, in the school hallway, a confrontation between the male student and the female plaintiff resulted in the male student punching the plaintiff in the face and causing serious injuries. A lawsuit was filed on behalf of the female student against the high school board of education. The trial court denied the school board’s motion for summary judgment, and the case was tried. The trial court found for the plaintiff, awarding damages and medical expenses. The school board argued that the award should be reduced under comparative fault principles, but the trial court declined to do so because it found that the male student was the instigator. The school board appeals, arguing, inter alia, that the trial court erred by denying its motion for summary judgment, by not holding that the school board was immune under the public duty doctrine, by allocating no fault to the plaintiff, by not appropriately weighing judicial admissions of fault by the plaintiff, and by applying the clear and convincing evidence standard to determine whether the school board had established comparative fault. We affirm, finding that the denial of the summary judgment motion is not appealable after a trial on the merits, that the public duty doctrine is not applicable, that the trial court found that the male student was the instigator under the preponderance of the evidence standard, and that the preponderance of the evidence supports the trial court’s decision, even considering the plaintiff’s judicial admissions.

This appeal involves a dispute regarding the residential schedule for a twelve-year-old child. In the divorce proceeding filed in the Chancery Court for Sumner County, the trial court, at the parties’ request, appointed a psychologist to examine the parties and their child and to report his findings and conclusions to the court and the parties. After the psychologist completed and filed his reports, the trial court and the parties used them to fashion interim visitation orders. Despite the earlier use of the reports, the mother objected to the use of the reports at trial on the ground that she had not been afforded an opportunity to depose the psychologist. The trial court overruled the objection. After receiving the testimony of the parties and their child, the court designated the father as the primary residential parent and fashioned a residential schedule accordingly. On this appeal, the mother asserts that the trial court erred by (1) admitting and considering the psychologist’s report, (2) designating the father as the primary residential parent, and (3) declining to award her attorney’s fees. We have determined that the wife waived her opportunity to object to the introduction of the psychologist’s reports. We have also determined that the evidence presented at the trial is, by itself, sufficient to support the trial court’s designation of the father as the primary residential parent and that the trial court did not err by denying the mother’s request for attorney’s fees.

This appeal involves a petition to terminate a father’s parental rights that was filed by the child’s great aunt, great uncle, and another couple who would like to adopt the child. The juvenile court dismissed the petition upon finding that the father did not willfully abandon the child. The court
found that the great aunt and uncle had interfered with the father’s attempts to visit the child. The petitioners appeal. We reverse and remand for further proceedings.

The Petitioner, Terry D. Brewer, appeals the Lake County Circuit Court’s summary dismissal of his petition for the writ of habeas corpus. On appeal, Brewer argues that the indictment under which he was charged was defective, and, as a result, the Henderson County Circuit Court was without subject matter jurisdiction to enter judgments of conviction and resulting sentence of forty-five years. As such, Brewer asserts that his convictions for aggravated rape, aggravated sexual battery, and incest are void. After review, we conclude that the alleged defect is non-jurisdictional in nature and, because it was not raised prior to trial, it is waived. See Tenn. R. Crim. P. 12(f). Accordingly, summary dismissal is affirmed.

As a result of stealing funds from her employer, in 2002, Appellant, Laura June Mays, was convicted by a Hardeman County jury of theft of property between $10,000 and $60,000. Upon her conviction, the trial court placed Appellant on probation with a requirement that she and her co-defendant make restitution in the amount of $42,000. On January 5, 2006, Appellant’s probation was extended.  Appellant failed to make payments pursuant to the January 5, 2006 order. On October 31, 2006, a probation violation warrant was filed. Following a hearing, the trial court revoked Appellant’s probation for failure to pay restitution. On appeal, Appellant argues that the trial court erred in revoking her probation without taking into account her ability to pay. We reverse and remand the trial court’s decision because the evidence preponderates against the trial court’s findings that Appellant has willfully refused to pay her restitution or make a bona fide attempt to obtain the means to pay her restitution.

I concur in the results but would have deferred to the trial court’s rationale for dismissing the indictments had it availed the State a prior opportunity to resist the dismissal.

Defendant Christopher Carney and Defendant Anthony Mitchell were each indicted for the sale and delivery of cocaine, a Schedule II drug. In both cases, the trial court dismissed the indictments, and the State now appeals. The cases were consolidated for purposes of appeal. After a thorough review, we reverse the trial court’s dismissal of the indictments as to each Defendant and remand to the trial court for further 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 hearing and reporting to the Supreme Court of findings of fact and conclusions of law. This action, seeking permanent partial disability benefits attributable to a disputed diagnosis of a permanent lung injury, was dismissed by the trial court. We affirm the judgment of the trial court.

Appellee, Tracy C. Clark, was indicted by the Williamson County Grand Jury for possession of a weapon on school grounds. Appellee filed a motion to dismiss the indictment based on a claim of self-defense, averring that the facts would not support a conviction for the offense. The trial court dismissed the indictment after conducting a pre-trial evidentiary hearing and determining that Appellee could not be convicted because he acted in self-defense. The State filed an untimely notice of appeal. This Court, in the interest of justice, accepted the late-filed notice of appeal. Because we determine that the trial court improperly conducted a pre-trial evidentiary hearing on the motion to dismiss which essentially involved resolution of the question of Appellee’s guilt or innocence, we reverse the trial court’s ruling and remand the case for reinstatement of the indictment.

I must respectfully dissent from the majority opinion in this case, on the grounds that the proof does not support a finding of willful abandonment by the Father.1 Specifically, there is no evidence that the Father was aware of his duty to visit, a necessary element of willfulness.

Defendant, Timothy Swofford, presents for review a certified question of law pursuant to Tennessee Rule of Criminal Procedure 37(b)(2). Defendant entered a plea of guilty to one count of driving under the influence (DUI), first offense, a Class A misdemeanor. The trial court sentenced Defendant to eleven months, twenty-nine days, to be suspended after serving forty-eight hours in confinement. As a condition of his guilty plea, Defendant properly reserved a certified question of law as to whether he was subjected to an unconstitutional traffic stop. After a review of the record, we affirm the judgment of the trial court.

In this appeal we must determine whether an injured party was a “farm employee” within the meaning of a farm owner’s liability insurance policy. The alleged employee is the farm owner’s father. He was grinding corn to feed the farm owner’s cattle when he was injured. The father and his wife filed suit against the son and his wife seeking to recover damages as a result of the accident. The son’s farm owner’s liability policy provided coverage for occurrences to “farm employees” in certain instances. The insurer filed this declaratory judgment action seeking a declaration that it had no duty to defend or indemnify the insureds because the father was not a farm employee. The trial court held that the father was a farm employee and ordered the insurer to defend and indemnify the insureds in the underlying lawsuit. We affirm.

A Shelby County Jury convicted the Petitioner, Bobby Joe Lester, of attempted first degree murder, especially aggravated kidnapping, two counts of aggravated assault, and coercion of a witness. The trial court merged the aggravated assault conviction with the conviction for attempted first degree murder and sentenced the Petitioner to an effective eighty-five year sentence. The conviction and sentences were affirmed by this Court on direct appeal. State v. Bobby Joe Lester, No. W2004-00842-CCA-R3-CD, 2005 WL 1798763 (Tenn. Crim. App., at Jackson, July 28, 2005). The Petitioner filed a petition for post-conviction relief, amended by appointed counsel, alleging he did not receive the effective assistance of counsel. The post-conviction court dismissed the petition after a hearing. On appeal, the Petitioner contends that he is entitled to post-conviction relief because his trial counsel was ineffective by: (1) failing to request the jury be instructed on facilitation; (2) failing to adequately argue in the motion for new trial that his convictions for especially aggravated kidnapping and attempted first degree murder violate due process, citing State v. Anthony, 817 S.W.2d 299 (Tenn. 1991); and (3) failing to object to testimony from the victim about a prior rape. The Petitioner also contends that his appellate counsel was ineffective for failing to argue the Anthony issue on appeal. After reviewing the issues and applicable authorities, we affirm the post-conviction court’s judgment.

A Shelby County Criminal Court jury convicted the defendant, James Scott of one count of driving under the influence of an intoxicant (DUI), fourth offense. On appeal, he alleges that the trial court erred in denying his motion to dismiss the indictment for selective prosecution and his attempt to impeach a witness without viewing the pertinent parts of a video he claimed supported both claims, that the trial court erred in imposing more than the presumptive minimum sentence, and that the trial judge erred in failing to recuse himself for the ruling on the motion for new trial. Upon review, we reverse the trial court’s order overruling the motion for new trial and remand.

Petitioner, George Langford, appeals the trial court’s dismissal of his Petition for Writ of Error Coram Nobis and/or Petition for Post-Conviction Relief in which he contended that the trial court’s instructions to the jury violated his constitutional right to due process. After a thorough review, we affirm the judgment of the trial court.

This is a State appeal from an order dismissing the indictment against the Defendant, Cedric Ruron Saine. The Defendant was indicted for possession with the intent to sell more than 300 grams of cocaine. The issue presented for our review is whether the trial court erred in granting the motion to suppress evidence seized from the Defendant’s residence and vehicle or, more specifically, whether the search warrant affidavit contained sufficient facts to establish probable cause that drugs were located inside the Defendant’s home and, if not, whether the warrantless search of the Defendant’s car was supported by exigent circumstances. After a review of the record and the applicable authorities, we affirm the order of the trial court granting the Defendant’s motion to suppress the evidence discovered during the search of his residence, but we reverse the decision to suppress the drugs found during the search of the Defendant’s car. We vacate the order dismissing the indictment, and the case is remanded for further proceedings consistent with this opinion.

A Putnam County jury convicted Appellant, William Floyd Cartwright, of first degree premeditated murder. He was sentenced to life imprisonment with the possibility of parole. On appeal, Appellant contends that the evidence is insufficient to sustain his conviction because the State did not prove that he acted with premeditation. We affirm the judgment of the trial court because the evidence sufficiently supports the conviction.

This 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) (2005 & Supp. 2007).  Employee alleged that she had sustained a permanent disability as a result of exposure to mold at her place of work. The trial court found in her favor and awarded benefits for 35% permanent partial disability to the body as a whole. Employer has appealed, contending that the trial court erred by finding that Employee had sustained a permanent injury or contracted an occupational disease, by finding that her condition was permanent, and by awarding an impairment rating in conflict with the AMA Guidelines. Because the evidence preponderates against the finding that Employee sustained a compensable injury or contracted an occupational disease, the judgment of the trial court is reversed.

This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel 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 parties stipulated that appellee Susan Randolph (“Employee”) suffered bilateral carpal tunnel syndrome as a workplace injury during her employment with appellant Fleetguard, Inc. (“Employer”). The parties also stipulated as to her rate of compensation, impairment, and vocational disability. At trial, the only disputed issue was whether Employee gave Employer actual notice of her injury prior to July 1, 2004. The trial court held that Employee did and Employer has appealed. We reverse the judgment of the trial court and remand this matter for further proceedings.

The defendant, Steven Ray Tallent, pleaded guilty to a charge of domestic assault and was sentenced in the Blount County Circuit Court to a sentence of 11 months and 29 days, which was suspended to supervised probation. On May 30, 2007, the court revoked the probation and ordered the defendant to serve 11 months and 29 days in confinement. From that order, the defendant appeals and claims a lack of evidence. Upon review, we affirm the judgment below.

This workers’ compensation appeal has been referred to the Special Workers’ Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated § 50-6-225(e)(3) for a hearing and a report of findings of fact and conclusions of law. The employee, Lee Nora Hunter, alleged that she sustained a compensable neck injury resulting in permanent disability. The employer, Williams-Sonoma Direct, Inc., admitted that an injury occurred, but denied that it caused permanent disability. Ms. Hunter represented herself at trial. She introduced no medical evidence.  The trial court granted Williams-Sonoma’s motion for involuntary dismissal. Ms. Hunter has appealed. We affirm the judgment.

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 slipped and fell in the course of her employment as a cafeteria worker. She was subsequently diagnosed with fibromyalgia. The trial court found that condition was caused by the work injury, and awarded benefits for permanent total disability. Employer has appealed, contending that the evidence preponderates against the trial court's findings as to causation and also as to the extent of Employee's permanent disability. Employer further contends that the trial court erred in ordering accrued benefits to be paid in a lump sum. Employee contends that the trial court incorrectly based her average weekly wage upon a calendar year rather than a school year. We affirm the judgment in all respects.

The Defendant, Terrell Antron Greer, was convicted upon a jury verdict of one count of the sale or delivery of less than .5 grams of cocaine, a Class C felony, and he was sentenced to five years or that conviction. He was likewise convicted of two counts of the sale or delivery of more than .5 grams of cocaine, Class B felonies, and he was sentenced to eleven years for each of those convictions. All of his sentences were ordered to be served concurrently in the Department of Correction as a Range I, standard offender. In this appeal, he asserts that the evidence was not sufficient to support his convictions and that his sentences are excessive. Following our review of the appellate record, the parties’ briefs, and applicable law, we affirm the judgments of the trial court.