APPELLATE COURT OPINIONS

This appeal is from an order of the trial court denying Appellant’s motion for a continuance.  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. In 1999 the Employee injured his cervical spine and was awarded benefits,
including lifetime medical benefits. During the succeeding years he experienced various problems with his neck. In May 2003, the Employee struck a bay pole while operating a tow motor and claims an injury to his neck as a result of this incident. The treating neurosurgeon, Dr. Zellem, testified that the Employee suffered no new injury. An independent medical examiner, Dr. George Gaw, testified that the tow motor incident was a new injury. The trial judge accepted the opinion of Dr. Zellem and dismissed the Employee’s complaint. We affirm the judgment of the trial judge.

Defendant, Patty D. Layland Smith, pled guilty to two counts of failure to appear, each offense being a Class E felony. Defendant was sentenced as a career offender and ordered to serve six years for each offense, to be served concurrently, with a sixty (60) percent release eligibility date. Following a sentencing hearing, the trial court denied probation and any other form of alternative sentencing. Defendant appeals, arguing that the trial court erred in finding that she was not eligible for probation or alternative sentencing. After a full review, we affirm the judgments of the trial court.

The plaintiff, an inmate in the custody of the Tennessee Department of Correction, filed a pro se lawsuit against numerous prison officials and personnel of the department pursuant to 42 U.S.C. § 1983 in the Circuit Court of Lauderdale County, Tennessee. Therein, the plaintiff complained that prison officials terminated his prison job in retaliation for his filing numerous grievances against them. The plaintiff alleged violations of the United States Constitution, Tennessee statutes, and
various policies of the Tennessee Department of Correction. In response, the attorney general, acting on behalf of the defendants, filed a motion to dismiss for failure to state a claim for which relief could be granted. In turn, the plaintiff filed what amount to numerous amended complaints to allege new allegations or to add additional defendants. The trial court subsequently granted the defendants’ motion to dismiss and denied the plaintiff leave to amend his complaint. The trial court also held that the plaintiff could proceed in forma pauperis on appeal. On appeal, the plaintiff asks this Court to review whether the trial court erred in (1) granting the defendants’ motion to dismiss, (2) denying
the plaintiff leave to amend his complaint, (3) denying the plaintiff’s request for injunctive relief.  The plaintiff also asks this Court to determine whether he should be allowed to proceed in form a pauperis despite the fact that the federal courts previously dismissed three or more of his lawsuits for being frivolous or failing to state a claim. We affirm the trial court’s decisions to grant the defendants’ motion to dismiss and to deny the plaintiff’s request for injunctive relief. While the
plaintiff was entitled to file an amended complaint without leave of court, we find no error in the trial court’s refusal to allow the plaintiff to submit his amended complaints. Finally, we hold that his lawsuit should have been dismissed at the trial level pursuant to section 41-21-801 et seq. of the Tennessee Code, which governs lawsuits filed by inmates. Accordingly, we find that the present appeal is so utterly lacking in merit that we remand this case to the trial court for the assessment of all costs, expenses, and fees associated with this lawsuit against the plaintiff in accordance with section 41-21-801 et seq. of the Tennessee Code.

The defendant, Yvonne B. Ragland, was convicted on her guilty plea to Class D felony theft in the Knox County Criminal Court. The trial court denied her bid for judicial diversion and sentenced her to three years on probation. She appeals the denial of judicial diversion and the length of sentence imposed. Because the trial court erred in denying judicial diversion, we reverse and remand the case with instructions for the trial court to enter an order placing the defendant on judicial diversion with appropriate conditions.

The defendant, Charles Hall, was convicted by a Shelby County jury of two counts of aggravated robbery. For these offenses, the defendant was sentenced as a repeat violent offender to consecutive sentences of life imprisonment without the possibility of parole. On appeal, he argues that: (1) the trial court erred in consolidating the indictments for trial; (2) the trial court erred in sentencing him under the Repeat Violent Offender Act; (3) the evidence was insufficient to support his convictions; and (4) the trial court erred in ordering consecutive sentencing. Following our review of the record and the parties’ briefs, we reverse the judgments of the trial court and remand for two separate trials.

I dissent from the majority opinion in this case because, in my view, the parenting plan clearly and unequivocally designated Father as the primary residential parent. Therefore, I believe it was necessary for the trial court to determine whether there had been a material change of circumstances and, if so, whether a modification would be in the child’s best interest. Both parties sought to modify the permanent parenting plan. 

This is a post-divorce case involving child custody. The parties divorced with an agreed parenting plan for their minor child in which the parties shared equally in residential parenting time and decision-making. When both parties remarried and the child approached school age, the father filed a petition seeking to have the child reside primarily with him. The mother then filed a similar petition. After a comparative fitness analysis, the trial court designated the mother as the primary residential parent. The father now appeals. We affirm, finding that the evidence does not preponderate against the trial court’s decision.

The Defendant, Shrone M. Hill, pled guilty to five counts of aggravated burglary, and the trial court sentenced him, as a Range I offender, to an effective sentence of eighteen years in prison. On appeal, the Defendant contends that: (1) the trial court erred when it sentenced him to the maximum of six years for each count; and (2) the trial court erred when it ordered two of the five sentences to run consecutively to each other and consecutively to the three concurrent sentences. Finding that there exists no reversible error, we affirm the judgments of the trial court.

Because of the troubling potential for overexpansion of the “functional equivalency” rationale established in Cherokee and relied upon herein, I write separately to identify the reason for my concurrence. The key to determining when a private entity, through a relationship with a government, subjects its records to public inspection lies, in the first instance, in the analysis of whether the entity is performing a governmental function.

A privately-held limited liability company appeals the decision of the trial court which found that the company was the functional equivalent of a government agency in its management of a publically-owned facility thus making its documents subject to the Public Records Act. The judgment of the trial court is affirmed in part, reversed in part and remanded.

This is a personal injury action involving comparative fault. At a warehouse construction site, the defendant steel subcontractor cut a hole in the roof of the partially constructed warehouse. A temporary cover was put over the hole. A week later, the plaintiff employee of a roofing subcontractor fell through the hole and sustained serious injuries. The plaintiff received full
workers’ compensation benefits from his immediate employer, the roofing subcontractor.  Subsequently, the plaintiff filed a personal injury lawsuit against the defendant steel subcontractor.  The steel subcontractor then sought to assert fault against the general contractor in charge of the
entire warehouse construction project. The steel subcontractor filed a motion in limine to assert fault against the nonparty general contractor. The motion was denied and the case proceeded to a jury trial. At the conclusion of the trial, the jury awarded the plaintiff $546,000. The defendant steel subcontractor now appeals, asserting numerous errors by the trial court, including error in precluding the steel subcontractor from asserting fault against the general contractor. We reverse the trial court’s denial of the motion in limine, vacate the judgment, and remand, finding that the steel
subcontractor should have been permitted to assert fault against the general contractor.

The appellant, Calvin Austin, was charged with violating probation. After a hearing in which the trial court revoked the appellant’s probation solely on the fact that the appellant received a new arrest, the appellant appealed. Because the trial court improperly revoked the appellant’s probation without a finding that the revocation was based on a preponderance of the evidence, we reverse the revocation of probation and remand the case for a hearing in which the trial court determines whether the preponderance of the evidence justifies a revocation.

This case stems from a petition to terminate a father’s parental rights. At trial, the chancery court terminated the father’s parental rights as to his two minor children finding that grounds for terminating the father’s parental rights existed under sections 36-1-113(g)(1) and 36-1-113(g)(3) of
the Tennessee Code by clear and convincing evidence and that it was in the best interest of the children to terminate the father’s parental rights. On appeal, the State of Tennessee, Department of Children’s Services concedes that there was not clear and convincing evidence to support a finding that grounds for terminating the father’s parental rights under section 36-1-113(g)(1) existed.  However, it asserts on appeal that father’s narcissistic personality disorder was sufficient evidence to support a finding that the grounds for terminating the father’s parental rights pursuant to section 36-1-113(g)(3) of the Tennessee Code existed. On appeal, the father asserts that the Department of Children’s Services failed to make reasonable efforts to reunite his family, and thus, his parental rights may not be terminated as yet under section 36-1-113(g)(3). We reverse.

On this appeal, the Appellant, TomKats, Inc., challenges the propriety of the trial court's awarding Appellee, Shawn Humphrey, judgment for breach of an oral agreement to pay commissions due for sales of sponsorships for an event called Dancin' in the District during the year 1999, failure to pay commissions due on sponsorship and vendor booth revenues pursuant to a written agreement for same event in the year 2000, the subsequent breach of that agreement for the years 2001 and 2002 and dismissal of Appellant's counterclaim for breach of a non-compete agreement and breach of fiduciary responsibilities. Humphrey challenges trial court's findings with regard to the amount of damages for commissions awarded for 1999 and the failure to award prejudgment interest on the judgment for breach of contract. We affirm, as modified.

The petitioner, Billy Jackson Coffelt, was convicted in 1983 of assault with intent to commit first degree murder and assault with intent to commit robbery with a deadly weapon. The trial court imposed a sentence of life for the conviction of assault with intent to commit first degree murder and a sentence of not less than ten and not more than twenty-one years for the conviction of assault with intent to commit robbery. There was no direct appeal. After seventeen years of protracted litigation, the post-conviction court granted the petitioner a delayed appeal of his convictions. At the same time, the post-conviction court denied the remaining claims in the petition for post-conviction relief. The petitioner filed separate notices of appeal in each case. The cases were later consolidated by this court upon motion of the petitioner. The single issue presented in the petitioner's delayed appeal is whether the evidence is sufficient to support the convictions. In his appeal of the denial of his post-conviction petition, the petitioner asserts that he was denied the effective assistance of counsel at trial. Because the evidence was sufficient to support the convictions, the judgments of conviction as to the delayed appeal are affirmed; however, because the petitioner was denied the effective assistance of counsel at trial, the judgment of the post-conviction court denying relief must be reversed, the convictions vacated, and the cause remanded for a new trial.

This is an appeal from a divorce action in which the Appellee, Sheila Darlene Campbell (Ms. Campbell), was awarded 73.6 percent of the parties marital property together with alimony in solido in the amount of $500.00 per month for a period of five years. The Appellant, John Wesley Campbell (Mr. Campbell) has appealed both the division of the marital assets and awarding of alimony. Ms. Campbell appeals the refusal of the trial court to require that Mr. Campbell pay her attorneys' fees and alleges the trial court erred in equally dividing the court costs. We modify the judgment of the trial court to delete the requirement that Mr. Campbell pay alimony in solido and affirm the trial court in all other respects.

Plaintiff/Appellant filed suit under the Tennessee Declaratory Judgment Act asserting that the legislation authorizing the use of electronic voting machines in some jurisdictions violated Art.  I, § 5 and Art. IV, § 1 of the Tennessee Constitution. The Shelby County Chancery Court dismissed Plaintiff/Appellant’s complaint pursuant to Tenn. R. Civ. P. 12.02(6). We affirm.

The defendant, Donnie Joe Hensley, appeals from his Greene County Criminal Court jury conviction of first degree murder. He claims on appeal that the trial court erred (1) in failing to dismiss the indictment because the juvenile court had transferred his case to criminal court without appointing a guardian ad litem, (2) in refusing to remand to juvenile court because a prosecution witness had lied in the juvenile court transfer hearing, and (3) in refusing to extend the plea cut-off date until the defendant attained his 18th birthday. The defendant also claims that the evidence is legally insufficient to support the conviction of premeditated first degree murder. We find no reversible error and affirm the judgment of the criminal court.

This is a post-divorce change of custody case. The trial court changed custody of the parties’ two minor children from the mother to the father. We hold that the evidence preponderates against the trial court’s finding that there had been a material change of circumstances to justify a change in
custody in the absence of proof that the mother’s sexual indiscretions and other alleged misconduct had affected or would affect the children in an adverse way. We therefore reverse the judgment of the trial court.

The defendants, Jose Rodriguez and Eladio Caballero Sanchez, were convicted of conspiracy to possess marijuana with intent to sell or deliver, a Class A felony. See Tenn. Code Ann. § 39-17-417(j)(13) (2003). The trial court sentenced each defendant to twenty years in the Department of Correction. In this appeal, the defendant Rodriguez asserts (1) that the evidence is insufficient to support his conviction; (2) that the trial court erred by admitting evidence of his alleged prior bad acts in violation of Tennessee Rule of Evidence 404(b); (3) that the trial court erred by permitting a state witness to give improper opinion testimony; and (4) that the trial court erred by admitting into evidence a map created by a state witness. The defendant Sanchez asserts (1) that the evidence is insufficient to support his conviction; (2) that the trial court erred by admitting evidence of his alleged prior bad acts in violation of Rule 404(b); (3) that the trial court erred by admitting into evidence a document that was not provided to the defense prior to trial; (4) that the trial court erred by permitting a state witness to give improper opinion testimony; and (5) that the trial court erred by admitting irrelevant evidence regarding his ownership of property in Mexico. The judgments of the trial court are affirmed.

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. In this appeal, the appellants contend that the trial court erred in finding that the employee is permanently and totally disabled and in refusing to limit the employee’s aware to 400 weeks. We conclude that the record supports the trial court finding of permanent and total disability. Therefore, under the provisions of Tennessee Code Annotated section 50-6-207(4)(A)(I) (Supp. 1996), total disability benefits are payable to age sixty-five without regard to the monetary cap imposed by the 400-week maximum total benefit provisions of Tennessee Code Annotated section 50-6-102(a)(6) (Supp. 1997). We further conclude that the trial court’s allocation of the
responsibility for the payment of these benefits between the employer and the Second Injury Fund
was proper. Accordingly, we affirm the judgment of the trial court.

This is a direct appeal as of right upon a certified question of law. See Tenn. R. Crim. P. 37(b)(2).  The Defendants, Ricky Shackles and Carrie Anderson, were both convicted of simple possession of a controlled substance, a Class A misdemeanor, following their entry of a guilty plea. Defendant Shackles received eleven months and twenty-nine days on probation, and Defendant Anderson received eleven months and twenty-nine days on judicial diversion. On appeal, the Defendants claim, pursuant to their reserved certified question, that as occupants of a parked car in a privately owned parking lot, they had a reasonable expectation of privacy which rendered the warrantless search of their car unconstitutional. Because the certified question of law is not dispositive of the Defendants’ case, we dismiss this appeal.

The defendant, Jarvis Taylor, was convicted of first degree felony murder and especially aggravated robbery. He received a sentence of life imprisonment for his felony murder conviction and a concurrent twenty year sentence for his especially aggravated robbery conviction. On appeal, the defendant argues that the evidence was insufficient to support his convictions. Following our review of the parties’ briefs and the applicable law, we affirm the judgments of the trial court.

The defendant, Larry J. Noel, was convicted by a Lauderdale County jury of attempted first-degree murder, aggravated assault, retaliation for past action, unlawful possession of a weapon, and driving on a revoked license. On appeal, he argues that the evidence was insufficient to convict him of attempted first-degree murder. After our review of the record and the parties’ briefs, we affirm the judgment of the trial court.