APPELLATE COURT OPINIONS

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 thirty (30) weeks of permanent disability for the loss of his right, great toe. On appeal, the employee contends that his injury was not limited to the scheduled member but that he is entitled to an award of permanent, partial vocational disability to the body as a whole. We affirm the judgment of the trial court.

The defendant, James Fenton, was convicted of especially aggravated robbery. The trial court imposed a sentence of twenty years. In this appeal, the defendant asserts (1) that the trial court erred by disallowing questions about the number of times the victim had previously been robbed; (2) that the evidence was insufficient to support the conviction; (3) that the trial court erred by denying his motion for judgment of acquittal; (4) that the trial court failed to appropriately exercise its role as thirteenth juror; and (5) that the trial court erred by failing to consider as a mitigating factor the defendant's lack of education. The judgment of the trial court is affirmed.

Defendant was indicted for the first degree premeditated murder of Danquel R. Batey. Following a jury trial, Defendant was found guilty of the lesser included offense of voluntary manslaughter, a Class C felony. The trial court sentenced Defendant as a Range II, multiple offender, to ten years confinement. In his appeal, Defendant challenges the sufficiency of the convicting evidence and the length of his sentence. After a thorough review, we affirm the judgment of the trial court.

This is a Title IV child support case involving the validity of an Order modifying retroactive child support. Following the entryof an agreed order establishing paternity, Father/Appellee entered into an agreed order setting retroactive child support from the time of the child’s birth. Some five years after entering into this agreed order, Father/Appellee petitioned the court to modify the retroactive support order. The trial court granted Father/Appellee’s motion. The State of Tennessee ex rel. Peggy Hayes appeals. We vacate the order of the trial court modifying retroactive child support.

Michael B. Todd (“Plaintiff”) filed a retaliatory discharge claim after being terminated from his position as a water plant operator for the City of Lexington, Tennessee. At trial, the court dismissed his retaliatory discharge claim after finding that Plaintiff failed to make out a prima facie case.  Plaintiff appeals raising the issues of whether the trial court erred in dismissing his retaliatory discharge claim and whether the trial judge erred in failing to recuse himself from this case. For the reasons set forth below, we affirm.

This is a termination of parental rights case. Both Mother and Father appeal from the order of the Juvenile Court of Shelby County terminating their respective parental rights. Specifically, Mother asserts that the grounds cited for termination are not supported by clear and convincing evidence in the record, and that the Department of Children’s Services did not meet the statutory verification requirement. Father asserts that the grounds cited for termination of his parental rights are not supported by clear and convincing evidence in the record, and that the Department of Children’s Services did not meet the statutory verification requirement. Because we find clear and convincing evidence in the record to support the Juvenile Court’s findings terminating the parties’ parental rights based on at least one ground under the statute, and that the Department of  Children’s Services did meet the statutory verification requirement,we affirm. Phyllis McCrary (“Ms. McCrary”) is the mother of the three minor children at issue in this case, A.L.M. (d.o.b. 9/18/92), D.D.M. (d.o.b. 9/4/93), and R.R.M. (d.o.b. 9/4/00). Randy Madison (“Mr. Madison”, together with Ms. McCrary, “Respondents”) is the father of R.R.M. (d.o.b. 9/4/00). The parental rights of the fathers of A.L.M and D.D.M. were terminated on November 10, 2005, and they are not parties to this appeal.

The trial court awarded Defendant Marshalls summary judgment in this premises liability, slip and fall action. We affirm.

Plaintiffs filed this declaratory judgment action to determine whether their claims for insurance benefits were covered under their health insurance policy. Defendant insurance carrier asserted the policy of insurance was void where Plaintiffs’ application for insurance contained material misrepresentations that increased the risk of loss. The trial court entered judgment for Plaintiffs and Defendants appeal. We affirm.

This appeal involves a dispute over the sale of a chiropractic practice. The purchaser made several significant changes in the practice following the sale and, when the practice began to fail, filed an action for breach of warranty against the seller in the Circuit Court for Davidson County. The seller attributed the failure of the practice to the seller’s poor business judgment and counterclaimed for unpaid lease payments. Following a three-day bench trial, the trial court found that the seller had breached the warranties of sale and awarded the purchaser $34,443 in damages. The trial court offset this award with a $18,294 judgment in favor of the seller for unpaid lease payments and then awarded the purchaser an additional $52,592 in attorney’s fees and costs. We have determined that the trial court erred by failing to reform the purchase agreement to reflect the true agreement between the parties and by concluding that the seller violated his warranty to disclose all material or significant information regarding the practice.

Father appeals the order of the Juvenile Court of Memphis and Shelby County setting child support and retroactive child support. We affirm.

Following a bench trial, the defendant, Derrick Lamouns Jones, was convicted of felony DUI, a Class E felony, and violation of the implied consent law and was sentenced to the Department of Correction for two years as a Range I, standard offender, and to the county jail for eleven months, twenty-nine days, respectively. The sentences were run concurrently with the exception of five days to be served in the county jail. In addition, the defendant’s driver’s license was suspended for five years and he was fined $6000. On appeal, he argues the trial court erred in denying his motion to suppress and his motion to exclude a prior DUI conviction; the evidence was insufficient to support his convictions; and the trial court improperly sentenced him to an enhanced sentence. Following our review, we affirm the judgments of the trial court.

The defendant, Fred Johnson, was convicted by a Campbell County jury of five counts of sexual battery, a Class E felony, and five counts of aggravated sexual battery, a Class B felony. He was sentenced to one year for each sexual battery and eight years for each aggravated sexual battery. He received a total effective sentence of twenty-seven years, twenty-four years at 100% as a violent offender for the aggravated sexual battery counts and three years at 30% as a Range I, standard offender for the sexual battery counts. On appeal, he argues: (1) the trial court erred in failing to charge lesser-included offenses; (2) the jury did not understand or follow the charge of the trial court; and (3) the evidence was insufficient to support his convictions for aggravated sexual battery. Following our review, we affirm the judgments of the trial court but remand for entry of corrected judgments to reflect that Counts 3 and 5 are consecutive to Counts 1 and 2.

The defendant, Thaddeus Johnson, was convicted of first degree premeditated murder and attempted first degree murder. He received a sentence of life imprisonment for his murder conviction and a consecutive twenty-five year sentence for his attempted murder conviction. On appeal, the defendant presents the following issues for review: (1) the trial court committed plain error by admitting hearsay statements from non-testifying co-defendants; (2) the evidence was insufficient to convict the defendant of first degree premeditated murder and attempted first degree murder; and (3) the trial court erred in ordering consecutive sentencing. Upon review of the record, parties’ briefs and applicable law, we affirm the judgments of the trial court.

Father filed this post-divorce petition seeking a change in custody and a temporary restraining order to prevent Mother from relocating to Texas with the children. Mother responded with a counter petition for relocation and contempt due to Father’s failure to timely pay alimony and child support.  The trial court denied Mother’s request to relocate based on a finding the parties were spending substantially equal time with the children, and it was not in the children’s best interest to relocate to Texas. It also denied Father’s custody petition, found Father in contempt for failure to pay alimony and child support, and assessed attorney fees against Father. Both parties appeal. Finding the trial court placed too great an emphasis on one factor in denying relocation, we reverse the denial of Mother’s petition to relocate. We affirm the trial court in all other respects.

Defendant, Leonard J. Young, was convicted by a jury of first degree premeditated murder, especially aggravated kidnapping, and theft over $1,000 but less than $10,000. See Tenn. Code Ann. §§ 39-13-202(a)(1) (Supp. 1999), 39-13-305(a)(1) (1997), 39-14-103 (1997). The jury subsequently sentenced Defendant to death for the murder, applying three aggravating circumstances: (a) Defendant was previously convicted of one or more felonies, other than the present charge, the statutory elements of which involve the use of violence to the person; (b) the offense was committed for the purpose of avoiding, interfering with, or preventing a lawful arrest or prosecution of Defendant or another; and (c) the murder was knowingly committed, solicited, directed, or aided by Defendant, while Defendant had a substantial role in committing or attempting to commit, or was fleeing after having a substantial role in committing or attempting to commit, theft. See id. § 39-13- 204(i)(2), (6), (7) (Supp. 1999). The trial court sentenced Defendant as a career offender to sixty years for the especially aggravated kidnapping conviction and as a career offender to twelve years for the theft conviction. The trial court ordered all sentences to be served consecutively. The Court of Criminal Appeals affirmed the convictions and the death sentence.

After the case was docketed in this Court, we entered an order identifying several issues for oral argument.¹ We now hold as follows: (1) the evidence was sufficient to establish venue in Shelby County; (2) the death in the immediate family of the original trial judge constituted an “other disability” under Tennessee Rule of Criminal Procedure 25(a) such that appointment of a substitute judge was proper; (3) the trial court committed harmless error in allowing into evidence several photographs of the victim as a child; (4) the evidence is sufficient to support Defendant’s conviction of first degree premeditated murder; (5) the trial court committed harmless error in admitting certain victim impact evidence; (6) the trial court committed harmless error in instructing the jury that Defendant’s 1999 Mississippi conviction of kidnapping was an offense, the statutory elements of which involve the use of violence to the person; and (7) the death sentence is valid under this Court’s mandatory review pursuant to Tennessee Code Annotated section 39-13-206(c)(1) (2003). We agree with the Court of Criminal Appeals’ conclusions with respect to the remaining issues and attach as an appendix to this opinion the relevant portions of that court’s decision. The judgment of the Court of Criminal Appeals is affirmed.

The defendant, Louis Bernard Williams, was convicted by a Madison County jury of possession of more than one-half ounce of marijuana with the intent to sell or deliver, a Class E felony, and possession of drug paraphernalia and evading arrest, both Class A misdemeanors. The trial court sentenced him as a Range II, multiple offender to four years in the Department of Correction for the felony conviction and to eleven months, twenty-nine days in the county jail for each of the misdemeanor convictions and ordered that the evading arrest sentence be served consecutively to the sentence for possession of marijuana. The trial court also ordered that the defendant serve the sentences consecutively to his eight-year sentence for a felony for which he had been on probation at the time of the instant offenses and consecutively to a nine-year sentence he had received for additional offenses he committed while out on bond in the instant case. The defendant raises three issues on appeal: (1) whether the evidence was sufficient to sustain his convictions; (2) whether the trial court erred in excluding the hearsay statement of a man who claimed ownership of the drugs; and (3) whether the trial court erred in not declaring a mistrial when a law enforcement officer referred at trial to the defendant’s having been on probation at the time of the offenses. Following our review, we affirm the judgments of the trial court

This is an action for breach of contract to pay commissions for arranging a lease on commercial property. The brokerage firm insisted that Pam-Am, the tenant, maliciously induced the Landlord, not to pay additional commission. The Chancellor disagreed. We affirm the trial court.

This is an automobile accident case. The plaintiffs were traveling on the interstate in a pickup truck pulling a U-Haul trailer. The individual defendants were each driving a commercial eighteen-wheeler truck and were following the plaintiffs, one behind the other. The plaintiffs came upon road construction and slowed to a stop. The defendant driving the truck immediately behind the plaintiffs could not stop; he swerved to the right and hit the plaintiffs’ U-Haul. The defendant driving the second truck behind the plaintiffs was also unable to stop. He struck both the U-Haul and the pickup truck, causing both vehicles to catch fire and resulting in serious personal injuries to the plaintiffs.  The plaintiffs sued the drivers of both of the eighteen-wheeler trucks and their employers for damages resulting from the accident. The plaintiffs’ claim against the driver of the second truck and his employer was settled. The plaintiffs then proceeded to trial against the driver of the first truck and his employer. After a jury trial, the jury returned a verdict finding in favor of the plaintiffs, concluding that the defendant driving the first truck was 25% at fault for the accident. The defendants appeal, arguing that no material evidence supports the jury’s finding that their negligence caused the plaintiffs’ damages. We affirm.

Through forgery and credit card fraud, defendants, Trotter and Sheriff, stole approximately half a million dollars from Trotter’s employer. After both defendants had pleaded guilty to theft of property over sixty thousand dollars, a Class B felony, the trial court imposed an eight-year sentence upon each defendant. The defendants applied for alternative sentencing; the trial court denied the application on the grounds of general deterrence and depreciation of the seriousness of the offense. On appeal, the intermediate court reversed the trial court’s judgment and imposed alternative sentences of twelve months incarceration, with the balance to be served on probation. We accepted the State’s petition for review of this cause under Rule 11 of the Tennessee Rules of Appellate Procedure in order to determine whether the intermediate court erred in reversing the trial court’s sentences of confinement and substituting alternative sentences. We conclude that the Court of Criminal Appeals erred in modifying the defendants’ sentences. Accordingly, the judgment of the Court of Criminal Appeals is reversed, and the judgment of the trial court is reinstated.

In this appeal, we are asked to review the trial court’s decision regarding the damages incurred by the plaintiff in a breach of contract action. The plaintiff, a bank, attempted to sell a parcel of distressed real estate containing residential dwelling units at a foreclosure sale. The defendant placed the highest bid for the property, but he subsequently refused to consummate the transaction.  After the sale, a dispute arose over who would be responsible for certain repairs, and the defendant,  who did not inspect the property prior to placing a bid, apparently felt that the property was not worth the amount he bid for it. The bank brought suit for breach of contract, but it failed to present any evidence of the property’s fair market value on the date of breach. After a bench trial in the matter, but before the trial court entered its final judgment, the bank sought to introduce additional evidence in the form of a second foreclosure sale conducted post-trial. The bank asserted that the amount it received at the second foreclosure sale represented the fair market value of the property.  After considering this additional evidence, the trial court entered a judgment finding that the bank failed to present evidence of the property’s fair market value on the date of the breach. Accordingly, the trial court concluded that the bank was not entitled to the damages it sought as a result of the breach. The bank appealed that decision to this Court. We affirm.

A Davidson County jury convicted the defendant, Jerry Jerome Primm, of second degree murder, especially aggravated kidnapping, and felony murder, for which he received an effective sentence of life imprisonment plus twenty years. Aggrieved that his convictions were unsupported by sufficient evidence and that his sentences were erroneous, he now brings the instant appeal. We affirm.

Plaintiff in medical malpractice action appeals jury verdict alleging that the “dynamite charge” which supplemented the original instruction after the jury was apparently deadlocked violated Kersey v. State and its progeny. We agree and, because we find the instruction affected the result, we reverse.

The Defendant, Reese L. Smith Jr., was convicted of two counts of impersonating a licensed professional, and the trial court sentenced him to concurrent sentences of two years for each count to be served on probation. On appeal, the Defendant seemingly contends that the evidence is insufficient to sustain his convictions. Finding that there exists no reversible error, we affirm the judgments of the trial court.

The appellant, James Castile, was indicted with charges of manufacturing methamphetamine, possession of methamphetamine with intent to sell, possession of methamphetamine with intent to deliver and criminal impersonation. Prior to trial, the trial court denied a motion to suppress the evidence which alleged that the evidence seized as a result of a search of his person and a search of his hotel room was unconstitutional. After a jury trial, the appellant was found guilty of manufacturing methamphetamine, possession of methamphetamine with the intent to deliver, simple possession of methamphetamine and criminal impersonation. At a sentencing hearing, the trial court disregarded the simple possession conviction as a lesser-included offense of the manufacturing and possession counts and sentenced the appellant as a Range II offender to an eight-year sentence for manufacturing methamphetamine, an eight-year sentence for possession of methamphetamine with intent to deliver and a six-month probationary sentence for criminal impersonation. The trial court ordered the sentences to run concurrently to each other, but consecutively to a previously imposed sentence for which the appellant was on probation from the State of Kentucky. After the denial of a motion for new trial, the appellant filed a timely notice of appeal. On appeal, the appellant argues that: (1) the trial court erred in denying the motion to suppress; (2) the evidence was insufficient to support the verdict; (3) the trial court erred by sentencing the appellant as a Range II offender and; (4) the trial court erred by ordering the sentence to be served consecutively to the Kentucky sentence. For the following reasons, we affirm the judgment of the trial court.