APPELLATE COURT OPINIONS

The petitioner, Tommy L. Watson, pled guilty to vehicular homicide (Class B felony) and reckless endangerment (Class E felony) in exchange for a sentence of twelve years. On appeal, he contends that he received ineffective assistance of counsel and submits that his guilty pleas were not knowingly and voluntarily entered. After review, we conclude that no error exists and affirm the judgment from the post-conviction court.

Appellant, Gregory O. Cherry, was found guilty by a jury of possession of over .5 grams of cocaine with the intent to sell, delivery of under .5 grams of cocaine, and possession of drug paraphernalia. As a result, he was sentenced to a total effective sentence of eight years. The trial court ordered Appellant to serve the effective eight-year sentence consecutively to sentences in case numbers 8395 and 8396.1 Appellant filed a motion for new trial. Appellant appeals, arguing that the trial court erred by refusing to suppress Appellant’s confession and improperly refused to suppress evidence obtained by a warrantless search of Appellant’s car. Appellant also contends that the evidence was insufficient to sustain the convictions. Because the record does not indicate that the trial court denied Appellant’s motion for new trial, we determine that we lack jurisdiction to hear the case and dismiss the appeal.

This is a negligence case. The defendant is a treatment facility for drug and alcohol addictions. The plaintiff was an inpatient at the defendant facility, undergoing substance abuse treatment. The plaintiff was admitted on referral from her probation officer. As part of her treatment, the plaintiff participated in experiential therapy designed to teach through experiences. For one exercise, a group of patients were organized into a team and a rope was tied between two posts, with a mattress on one side. The team was asked to devise a plan for getting all team members over the rope, without touching it. The plaintiff’s team decided to “toss” the female members of the team over the rope. The plaintiff was thrown over the rope once without injury. However, the team had to repeat the exercise. During the second attempt, the plaintiff was tossed over the rope, but this time her foot missed the mattress and she broke her ankle. The plaintiff then filed this lawsuit against the defendant facility. The facility moved for summary judgment, arguing that it could not be held liable because the plaintiff voluntarily chose to engage in the exercise despite an obvious risk of injury. The trial court granted the motion. The plaintiff now appeals. We reverse and remand, finding that the defendant facility had a duty of care to the plaintiff and that there is a genuine issue of material fact as to the extent to which the plaintiff felt compelled to participate in the exercise and as to whether the fault attributable to the plaintiff is greater than the fault attributable to the defendant facility.

The defendant, Gary Lee Marise, was convicted by a Carroll County jury of attempt to manufacture methamphetamine, a Class D felony, and was sentenced by the trial court as a Range I, standard offender to four years in the Department of Correction. He raises essentially three issues on appeal: (1) whether the evidence was sufficient to sustain the conviction; (2) whether the trial court erred in refusing his request for special jury instructions; and (3) whether he was denied a fair trial and the effective assistance of counsel due to the poor acoustics in the temporary courtroom,  which prevented some jurors from hearing his trial counsel. Following our review, we affirm the judgment 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 § 50-6-225(e)(3) for hearing and reporting of findings of fact and conclusions of law. The trial court found that the employee, Kenneth Conaway, was permanently and totally disabled. The employer has appealed that ruling, contending that the Mr. Conaway’s work as a minister precludes a finding of total disability. We agree and modify the award of the trial court to seventy-two percent permanent partial disability of the body as a whole.

The parties stipulated statutory grounds for termination of parental rights, and the Trial Court  found that it was in the child’s best interest that the father’s parental rights be terminated. On appeal, we affirm.

The Trial Court granted the parties a divorce, ordering the husband to pay child support and alimony in futuro. The husband has appealed arguing the Trial Court abused its discretion in awarding the wife alimony. We modify the alimony award and otherwise affirm.

A Shelby County jury convicted the defendant, William T. Carter, of premeditated first-degree murder, see T.C.A. § 39-13-202(a)(1) (2006), felony murder, see id. § 39-13-202(a)(2), and aggravated robbery, see id. § 39-13-402(a)(2). On appeal, the defendant challenges the sufficiency of the evidence regarding all three convictions. He also asserts that the trial court erred in finding that he qualified as a dangerous offender regarding the aggravated robbery conviction and that the trial court erred in ordering him to serve the aggravated robbery sentence consecutively to his firstdegree murder conviction. We affirm the judgments of the trial court; however, we remand for the execution of a proper merger of the first degree murder findings of guilt.

This appeal involves a claim in juvenile court to recover child support payments. The mother of the child at issue told the respondent that he was the child’s father. In reliance on this, the respondent signed a voluntary acknowledgment of paternity, and the juvenile court entered an agreed order setting child support and establishing the respondent’s child support arrearage. Over two years later, the respondent learned that the child might not be his, and he petitioned the juvenile court for a paternity test. His petition was granted, and the test showed that he was not the biological father of the child. The juvenile court set aside the voluntary acknowledgment of paternity based on fraud, relieved the respondent of any future obligation to pay child support, and forgave all past child support arrearages. Subsequently, the respondent filed a petition against the mother, seeking damages because the mother had fraudulently induced him into signing the voluntary acknowledgment of paternity. The juvenile court granted the respondent’s petition against the mother, awarding him damages consisting of the child support erroneously paid, the cost of  paternity testing, and attorney’s fees. The State, on behalf of the mother, now appeals. We reverse, concluding that the juvenile court erroneously forgave the respondent’s accrued child support arrearages, and that the juvenile court did not have jurisdiction to adjudicate the respondent’s petition against the mother for damages.

The majority, relying upon the authority of McLaney v. Bell, affirms the grant of habeas corpus relief. However, relying upon the authority of the Tennessee Supreme Court cases discussed below, I must respectfully dissent. My reasons are two-fold.

The State appeals the habeas court’s grant of a petition for habeas corpus relief filed by the Petitioner, Anthony Keshun Goods. The Petitioner alleged in his petition that his sentence was illegal because he was sentenced to concurrent terms when the law required him to be sentenced to consecutive terms. On appeal, the State contends the statutory requirement of consecutive sentences does not apply to the Petitioner, his petition is not yet ripe, and the remedy set out by the habeas court is improper. Finding no error in the judgment of the habeas court, we affirm the grant of habeas corpus relief and remand the case to the Shelby County Criminal Court for further proceedings not inconsistent with this opinion.

The petitioner, Larry Johnson, appeals the post-conviction court’s denial of his petition for postconviction relief. On appeal, he argues that he received the ineffective assistance of counsel because his attorney failed to request an instruction on second-degree murder as a lesser-included offense of premeditated first-degree murder and did not raise the trial court’s failure to give such instruction as an issue in the motion for new trial. Following our review of the record and the parties’ briefs, we affirm the denial of post-conviction relief.

The petitioner, Dennis Jarrett, filed a petition for post-conviction relief, alleging the ineffective assistance of counsel as grounds for relief. The trial court summarily dismissed the petition as timebarred. The petitioner appeals the dismissal, and we affirm the judgment of the trial court.

Appellant, Guy Martin, was found guilty by a jury of aggravated robbery and intentionally evading arrest in a motor vehicle. As a result, the trial court sentenced him to an effective sentence of nine years. Following the denial of a motion for new trial, Appellant initiated this appeal. On appeal, Appellant argues that the evidence is insufficient to sustain his convictions. As part of his argument that the evidence is insufficient to support the convictions, Appellant challenges the trial court’s denial of his motion to suppress the photographic lineup as unduly suggestive. Because the photographic lineup was not unduly suggestive and there was evidence presented from which a rational juror could conclude that Appellant committed aggravated robbery and intentionally evaded arrest in a motor vehicle, we affirm the judgments of the trial court.

The petitioner, Rickey Williams, appeals the Shelby County Criminal Court’s denial of his petition for post-conviction relief from his conviction for first degree premeditated murder and resulting life sentence. On appeal, he contends that he received the ineffective assistance of counsel and that the trial court gave an erroneous jury instruction on the definition of “knowing.” Upon review of the record and the parties’ briefs, we affirm the judgment of the post-conviction court.

In 1982, appellant prisoner was sentenced to one twenty-five year determinate sentence and four five-to-ten-year indeterminate sentences, to run consecutively. In 2003, appellant filed a declaratory judgment action in the Davidson County Chancery Court, alleging that he had been wrongfully denied the possibility of custodial parole. The trial court granted summary judgment in favor of appellee the Tennessee Department of Correction. Appellant appeals such ruling. We affirm.

On remand pursuant to Tennessee Code Annotated § 27-3-128, the trial court entered judgment in favor of Defendant with respect to Plaintiff’s claim for assault. We affirm.

The defendant, David Wayne Watkins, pled guilty to the offenses of theft over $1000, felony reckless endangerment, and felony failure to appear. As a result, he received a total effective sentence of eight years to be served consecutively to a prior sentence of six years he was already serving. On appeal, the defendant argues that the trial court erred in denying alternative sentencing and ordering confinement. Finding no error, we affirm the judgments of the trial court.

A Shelby County Criminal Court jury convicted the appellant, Justin Mathis, of first degree premeditated murder, and the trial court sentenced him to life imprisonment. On appeal, the appellant claims that (1) the trial court erred by allowing an expert to testify about the appellant’s potential gang membership; (2) the trial court erred by allowing the State to introduce into evidence a picture of a gun stored in a witnesses’ cellular telephone; (3) the trial court erred by allowing into evidence a photograph of the victim’s heart; (4) the trial court erred by instructing the jury on criminal responsibility for the conduct of another; and (5) the evidence is insufficient to support the conviction. Based upon the record and the parties’ briefs, we affirm the judgment of the trial court.

I concur in the majority opinion. I write separately to address two matters.

The plaintiff buyer, a Texas resident, became aware of a used car for sale in Memphis through an internet advertisement. The plaintiff contacted the defendant who had prepared the internet advertisement for the seller, and who provided him with the phone number of the defendant seller.
The plaintiff and the defendant seller agreed that the plaintiff would travel to the seller’s house in
Memphis to see the car and decide whether to purchase it for $38,000. The plaintiff and his stepson drove to the seller’s home in Memphis, inspected the car, and took it on a short test-drive. The plaintiff noted several problems with the car during the test-drive, but declined the defendant seller’s offer to have the car inspected by a Memphis area mechanic prior to purchase. The plaintiff tendered full payment for the car, and he and the seller signed a bill of sale that contained “as is” disclaimers of warranty. After the plaintiff arrived back home in Texas, he took the car to a mechanic for routine maintenance. The mechanic informed the plaintiff that the car’s frame was severely rusted, rendering it dangerous to drive. The plaintiff received the same opinion from a restoration specialist, and the plaintiff claims ultimately to have spent nearly $35,000 restoring the vehicle. The plaintiff filed a complaint in Shelby County Circuit Court, asserting claims under the Tennessee Consumer Protection Act and claims for negligent misrepresentation and breach of contract. The plaintiff claimed actual damages which included over $25,500 in restoring the car to the condition represented by the defendants, and he sought treble damages under the Tennessee Consumer Protection Act. After discovery, the trial court granted the defendants’ joint motion for summary judgment. We affirm.

Following a short marriage of less than four years, Thomas R. Jones, Jr. (“Father”) filed a complaint for divorce from Heather L. Rusch-Jones (“Mother”). Mother filed a counter-claim also seeking a divorce. Both parties sought to be the primary residential parent of their young daughter. While this case was pending, both parties filed competing petitions for orders of protection. Father’s petition was granted; Mother’s was not. Following a very lengthy trial, the Trial Court designated Father as the primary residential parent and awarded Mother supervised and restricted co-parenting time. The Trial Court awarded Mother a limited amount of alimony. Mother appeals raising numerous issues, including a challenge to the Trial Court’s designation of Father as the primary residential parent and the amount of alimony she was awarded. We affirm the judgment of the Trial Court and remand for further proceedings consistent with this Opinion.

This case involves the third and fourth appeals (consolidated) of successive petitions to modify custody. The mother and father of the child at issue were never married. The mother was designated the primary residential parent for the child, and the father was given designated parenting time and ordered to pay child support. In 2002, the father filed a petition to modify custody. The trial court denied the father’s petition, and the decision was affirmed by this Court (“E.J.M. I”). During the pendency of that appeal, the father filed a second petition for a change of custody based on facts that arose after his first petition was denied. A hearing on this petition was conducted shortly after this Court issued its decision in E.J.M. I. A juvenile court judge held that, though he might otherwise change custody to the father, he was bound by the appellate decision in E.J.M. I to give final decision-making authority to the mother. Nevertheless, joint custody was ordered. The father now appeals that decision. Shortly after that, the father filed another petition to modify custody, based on facts that arose after the decision to award joint custody. Another juvenile court judge conducted a hearing, heard testimony, and reviewed the entire record. After doing so, the juvenile court judge strongly criticized the father’s litigiousness and, in light of the pending appeal of the joint custody award, dismissed the father’s petition for lack of jurisdiction. The father appeals that decision as well. Both appeals were consolidated, but the appeal was dismissed due to a procedural defect (E.J.M. II). The procedural defect was cured, and we now hear the consolidated appeal. We reverse the conclusion by both juvenile court judges, holding that the trial court has jurisdiction and authority to modify custody even while an appeal is pending, so long as the modification is based on new facts and changed conditions that arose after the trial court judgment that is the subject of the appeal. The cause is remanded for a decision on the father’s petitions to modify custody.

The defendant, Kellom Timbs, appeals as of right his conviction for reckless aggravated assault causing serious bodily injury, a Class D felony, imposed as a result of his jury trial in Franklin County Circuit Court. He received a sentence of two years as a Range I, standard offender to be served on probation upon the completion of eleven months and twenty-nine days in jail. He argues that there is insufficient proof to support his conviction, that the trial court erred in denying judicial diversion and that the trial court erred in not granting him full probation. Upon a full consideration of the record, we affirm the judgment of the trial court as modified.

An inmate of the Department of Correction appeals dismissal by the trial court of his Petition for Writ of Certiorari of a Department of Correction Disciplinary Proceeding. The trial court upheld the action of the Department of Correction. The judgment of the trial court is affirmed.