APPELLATE COURT OPINIONS

I adhere to my longstanding view that a “preponderance of the evidence” standard and a
“clear and convincing evidence” standard are incompatible with each other and cannot be reconciled either in the trial court or in appellate courts. The effort to make these standards compatible, as asserted in Ray v. Ray, 83 S.W.2d 726 (Tenn.Ct.App.2001), and its progeny are in my view incorrect for reasons stated at length in Estate of Acuff v. O’Linger, 56 S.W.3d 527 (Tenn.Ct.App.2001) and In re Z.J.S. and M.J.P., No. M2002-02235-COA-R3-JV, filed June 3, 2003 (Tenn.Ct.App.2003-Cain, concurring).

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. The trial court awarded Plaintiff 54 percent permanent partial disability as a
result of sustaining a latex allergy injury. Defendant contends the evidence established that Plaintiff did not have a latex allergy condition and if she did, her last employer would be responsible for compensation under the last injurious exposure rule. We affirm the judgment.

The defendant, Michael Forrest Bandy, appeals his convictions of first degree felony murder and aggravated child abuse, a Class A felony. The sole issue on appeal is the sufficiency of the evidence.  Upon review, we conclude that the evidence is sufficient to support the convictions and affirm the same.

This appeal involves the parental rights of the biological parents of seven minor children. After the children had been removed from their biological parents’ custody for approximately one year, the Tennessee Department of Children’s Services filed a petition in the Circuit Court for Perry County seeking to terminate the parental rights of the biological parents. The trial court conducted a bench trial and then entered an order terminating the biological parents’ parental rights because the conditions that caused the children to be removed from the parents’ custody continued to persist and because the parents had committed severe child abuse. Both parents appealed. We have determined that the record contains substantial and material evidence supporting the trial court’s conclusions that the biological parents’ conduct provides substantive grounds for terminating their parental rights and that the termination of the biological parents’ parental rights is in the children’s best interests.

In this case we are asked to review a trial court’s decision to hold the defendant in contempt of the court’s order. After the plaintiff filed its lawsuit to recover amounts allegedly owed on certain invoices, the trial court ordered the defendant to file a sworn statement setting forth any amounts it believed it owed to the plaintiff and the “basis” for that statement. The defendant submitted the affidavit of its president who asserted that it owed nothing to the plaintiff and that plaintiff breached the parties’ contract. The defendant subsequently filed an answer denying it owed the money and filed a counter-complaint for breach of contract, tortious interference with contract, and fraud. The plaintiff filed a petition seeking to hold the defendant in contempt of the court’s order, asserting that the affidavit filed by the defendant did not set forth specific facts. The chancery court granted the motion and found the defendant in contempt of the order holding that the affidavit did not contain enough “detail” as required by the order. The defendant appealed to this Court. We reverse.

The trial court determined a material change of circumstances had occurred which warranted modification of the parties’ child visitation scheduled. Father appeals. We affirm.

Defendant, Courtney Means, was convicted of three aggravated robberies and sentenced to twelve years in each case, with two of the sentences to be served consecutively. On appeal, he argues that the evidence is insufficient to sustain the convictions; the trial court erred in allowing the hearsay statement of a deceased victim to be admitted as an excited utterance; and the court erred in sentencing. Following our review, we affirm the judgments.

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 100 percent permanent disability. On appeal, the employer contends the
evidence does not support a finding of total disability and that the trial court was in error in accepting the testimony of a doctor who looked at the Second Edition of the AMA Guides in an attempt to give a numerical number of impairment for a Class 2 psychiatric injury when the Fifth Edition of the Guides did not contain a numerical rating. We affirm the judgment.

Janis Sue Watson and Albert Eugene Brooks, the co-defendants, were convicted of first degree premeditated murder and conspiracy to commit first degree murder, a Class A felony. Each co-defendant received concurrent sentences of life in prison and twenty years, respectively. The co-defendants’ consolidated appeals address both the convictions and sentences. Having found no reversible error, the convictions and sentences of both co-defendants are affirmed.

James L. Williams, Brenda G. Williams, Charles Roberson, and Marjorie Roberson (“Plaintiffs”) sued Jordan Lee Fox (“Defendant”) claiming, in part, that Defendant was constructing a mobile home/modular home in the Oma Lee Williams subdivision in violation of the subdivision restrictions. Plaintiffs sought, among other things, a restraining order prohibiting Defendant from constructing and completing the mobile home/modular home. The case proceeded to trial. The Trial Court entered an order finding and holding, inter alia, that the structure in question is a modular home and that under existing case law Defendant was in violation of the subdivision restrictions.  The Trial Court awarded Plaintiffs a permanent injunction and ordered Defendant to remove the structure. Defendant appeals to this Court claiming, in part, that the existing case law upon which the Trial Court based its decision dealt with double wide or manufactured homes, not modular homes. We affirm.

This is not the first time this case has been on appeal. In this appeal, we are asked to determine if the chancery court erred when it found that an insured individual was made whole by a settlement agreement with a third party tortfeasor so as to require the insured to reimburse his insurer.  Specifically, Appellant contends that the chancery court erred in finding that the insured was not made whole because it failed to use the formula method used by federal courts for determining whether an insured is made whole and failed to engage in an analysis of the dollar amounts of the insured’s recovery and losses. We reverse and find that the insurer is entitled to reimbursement from the insured.

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 dismissed the complaint by sustaining a motion for summary judgment. The court held the
employee’s injury did not occur in the course of employment. The judgment is reversed and the case is remanded.

I respectfully dissent from majority’s decision to affirm the Trial Court’s grant of summary judgment. I would reverse the Trial Court’s grant of summary judgment.

The trial court awarded Petitioner child support for one child in accordance with the child support guidelines. Respondent appeals, asserting the trial court erred by failing to deviate from the child support guidelines. We affirm.

Tennessee Farmers Life Reassurance Company (“Tennessee Farmers”) brought this interpleader action seeking judicial guidance as to the person or persons entitled to receive benefits under a policy of insurance insuring the life of Brenda Gail Langley (“the deceased”). The deceased designated three of her four children and a grandchild as the beneficiaries of the policy; however, prior to the deceased’s death, her sister, Linda Sue Rose, acting under her authority as attorney in fact for the deceased, changed the beneficiary of the policy to herself. After the death of the deceased, Ms. Rose, the three children, and the deceased’s grandchild, Ethan E. Langley, all asserted rights to the proceeds of the subject policy. The trial court granted summary judgment to the deceased’s children and grandchild, finding that they were entitled to the proceeds because – as found by the trial court – Ms. Rose did not have the authority under the deceased’s power of attorney to change the beneficiary on the policy. Ms. Rose appeals. We affirm.

The defendant, Albert Jones, was convicted by a Shelby County Criminal Court jury of first degree premeditated murder and sentenced to life imprisonment. In this direct appeal, he argues that the evidence was insufficient to sustain a first degree murder conviction and the trial court erred by denying his request for a special jury instruction on the State’s burden of proof. Finding no error, we affirm the judgment of the trial court.

The defendant, Steven James Rollins, was convicted of premeditated murder, felony murder, and especially aggravated robbery. The trial judge merged the felony murder conviction with the premeditated first degree murder conviction. Upon conclusion of the sentencing hearing, the jury found that the State had established beyond a reasonable doubt the following five aggravating circumstances: (1) the defendant was previously convicted of one or more felonies, other than the present charge, whose statutory elements involve the use of violence to the person; (2) the murder was especially heinous, atrocious, or cruel in that it involved torture or serious physical abuse beyond that necessary to produce death; (3) the murder was committed for the purpose of avoiding, interfering with, or preventing a lawful arrest or prosecution of the defendant or another; (4) the murder was knowingly committed, solicited, directed, or aided by the defendant, while the 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, any robbery; and (5) the victim of the murder was seventy (70) years of age or older. See Tenn. Code Ann. § 39-13-204(i)(2), (5), (6), (7), (14) (1999). After further finding that these aggravating circumstances outweighed mitigating circumstances beyond a reasonable doubt, the jury imposed a sentence of death.

The defendant appealed, challenging both his conviction and sentence of death.¹ The Court of Criminal Appeals affirmed. The case was automatically docketed in this Court. See Tenn. Code Ann. § 39-13-206(a)(1). Thereafter, this Court entered an order specifically requesting that the parties address the following three issues at oral argument:² (1) whether the interrogation of the defendant by the sheriff’s officers after his arrest violated the defendant’s state and federal constitutional rights to counsel such that the trial court erred by refusing to suppress the defendant’s statements; (2) whether the trial court erred in refusing to allow the defendant to call his codefendant, Greg Fleenor, to the witness stand to invoke his privilege against self-incrimination in the jury’s presence; and (3) whether the mandatory review provisions of Tennessee Code Annotated section 39-13-206(c)(1) require reversal of the defendant’s death sentence.³ Upon thoroughly considering these and all issues raised by the defendant, the record on appeal, and the relevant authority, we affirm the defendant’s conviction of first degree murder and sentence of death.

Defendant, Jon A. Engle, was convicted of DUI and sentenced to eleven months and twenty-nine days, with all but ten days suspended, and a fine of $1,500 and costs. He appealed, arguing that the arresting officers did not have reasonable suspicion to stop his vehicle. However, Defendant filed neither a motion to suppress the stop in the trial court nor a motion for new trial. Accordingly, we conclude that this issue is waived and affirm the judgment of the trial court.

We accepted this interlocutory appeal pursuant to Rule 9 of the Tennessee Rules of Appellate Procedure to determine the enforceability of the employee’s prospective waiver of her reconsideration rights in a workers’ compensation settlement agreement. We conclude that the waiver provision is contrary to both the plain language of Tennessee Code Annotated section 50-6-114(a) and public policy and, therefore, is unenforceable. Accordingly, we affirm the judgment of the trial court as modified and remand the case to the trial court for further proceedings consistent with this opinion.

Plaintiff filed a medical malpractice action against doctor and his employer. The jury returned a verdict in favor of Defendants. Plaintiff appealed the admission into evidence of expert testimony offered by two physicians under the locality rule and the award of certain discretionary costs. The judgment of the trial court is reversed and the case remanded for a new trial.

We granted the defendant permission to appeal to consider whether the exact copy requirement of Tennessee Rule of Criminal Procedure 41(c)1 applies to an affidavit that has been incorporated by reference into a search warrant. Upon consideration, we hold that the exact copy requirement expressly applies to search warrants only and does not apply to incorporated affidavits. The record supports the trial court’s finding that the defendant a copy of the search warrant was “identical in every respect” to the original search warrant. Furthermore, even if the exact copy requirement expressly applied to affidavits, we would conclude, as did the Court of Criminal Appeals, that the insignificant differences between the original affidavit and the defendant’s copy of the affidavit do not warrant suppression of the evidence. For these reasons, we affirm the judgments of the trial court and Court of Criminal Appeals.

This state appeal, initially filed as a Tennessee Rule of Appellate Procedure 3 appeal, is deemed by this court an interlocutory appeal pursuant to Tennessee Rule of Appellate Procedure 10. The state seeks review of the Knox County Criminal Court’s determination that, in the on-going driving under the influence (DUI) prosecution of the defendant, Ricky Lynn Norwood, a 1997 DUI conviction may not be used to enhance punishment. Because the record and the applicable law support the trial court’s ruling, we affirm the order.