APPELLATE COURT OPINIONS

This workers’ compensation appeal has been referred to the Special Workers’ Compensation
Appeals Panel in accordance with Tenn. Code Ann. § 50-6-225(e)(3) for hearing and reporting of
findings of fact and conclusions of law. In this appeal, the employer asserts that the evidence
preponderates against the trial court’s award to the employee of 50% permanent partial disability to body as a whole. The employer also argues that the trial court erred in requiring it to pay the
employee $1,302.00 for unauthorized chiropractic treatment. We conclude that the medical evidence preponderates against the trial court’s rulings, and in accordance with Tenn. Code Ann. § 50-6-225(e)(2), reverse the judgment of the trial court as to both issues.

The Appellant, Tim Holt, appeals the judgment of the Hancock County Criminal Court denying post-conviction relief. Holt was convicted of first degree murder and sentenced to life imprisonment. On appeal, Holt argues that he was denied his Sixth Amendment right to the effective assistance of counsel. After review, the judgment of the post-conviction court is affirmed.

This appeal arises from a divorce case. After ten years of marriage, the husband filed a divorce complaint in the Chancery Court for Lincoln County. Even though both parties sought to be the primary residential parent prior to the trial, the court placed the children in the husband's custody after the wife attempted suicide. After conducting a bench trial, the court designated the father as the primary residential parent and granted the mother unsupervised visitation. On this appeal, the mother asserts that the trial court erred with regard to the custody of the children and the division of marital assets. She also insists that the trial court erred by holding her in criminal contempt. While we reverse the trial court's finding that the mother was in criminal contempt, we affirm the court's decisions regarding custody and the division of the marital estate.

Following a transaction involving the sale of a business, the plaintiff filed suit against several defendants in federal court alleging causes of action grounded in federal and state law. The federal jury found some of the defendants liable, but they concluded that one of the defendants did not engage in any wrongdoing during the transaction at issue. Thereafter, the plaintiff filed suit in a Tennessee chancery court seeking to impose a constructive trust over funds held by the defendant exonerated by the jury. The defendant removed the case to the federal district court. The district court determined that the claim was barred by the doctrine of res judicata. The plaintiff appealed to the federal court of appeals, which ruled that the case was not properly removable, as it only presented a claim based upon state law. On remand to the chancery court, the defendant asserted the affirmative defenses of res judicata and collateral estoppel. The chancery court subsequently granted the plaintiff’s motion for summary judgment. The defendant appealed to this Court. We reverse the chancellor’s grant of summary judgment to the plaintiff, and we hold that the plaintiff’s claim for a constructive trust is barred by the doctrines of res judicata and collateral estoppel. Accordingly, we dismiss the case in its entirety.

I concur in the opinion authored by Judge Swiney to the extent that it affirms the trial court’s dismissal of the plaintiff’s claims based upon breach of express warranty, breach of implied warranty, unjust enrichment, and money had and received. I also concur that the plaintiff’s Tennessee Consumer Protection Act (“the TCPA”) claims are not subject to dismissal at this stage of the proceedings. I write separately to express my opinion that many of the plaintiff’s morespecific allegations pertaining to his general allegation of “unfair and/or deceptive acts or practices” under the TCPA appear to fall within the “loose general praise of wares sold” referred to in Restatement (Second) of Torts § 402B. See also Ladd v. Honda Motor Co., Ltd., 939 S.W.2d 83, 100 (Tenn. Ct. App. 1996). For example, I believe a reference to one’s product as “superior” in an advertisement or other writing is nothing more than a statement of the seller’s opinion as to the worth of its product. How does one measure whether a product is superior or not? For example, it may be superior in one aspect but not in another. If a company’s DVD player emits a sound that is rated better by independent experts when compared to the products of others; but has a lower rating in the same competition from a mechanical standpoint, should a jury be permitted to speculate as to which quality the company was touting when it referred to its product as “superior”? I think not. “Superior,” like beauty, is in the eyes of the beholder.

The defendant, Corey Moten, was convicted of second degree murder, a Class A felony, and sentenced as a violent offender to twenty years in the Department of Correction. On appeal, he argues that the evidence is insufficient to support his conviction and that the trial court erred in giving a sequential jury instruction. Following our review, we affirm the judgment of the trial court.

This potential class action lawsuit was filed by Don Daugherty (“Plaintiff”) on behalf of himself and all other Tennessee residents who purchased certain specified DVD players from Sony Electronics, Inc. (“Sony”). Plaintiff alleged in his complaint that the DVD players were inherently defective, that Sony was aware of these defects, and that Sony nevertheless marketed and sold the defective DVD players. Plaintiff brought claims for breach of express warranty, breach of implied warranty, unjust enrichment, money had and received, as well as a violation of the Tennessee Consumer Protection Act. Sony’s motion seeking to have all of the claims dismissed was granted by the Trial Court.  Plaintiff appeals the dismissal of all five claims. We affirm the judgment of the Trial Court with respect to the claims for breach of express warranty, breach of implied warranty, unjust enrichment, and money had and received. We reverse the judgment of the Trial Court dismissing Plaintiff’s Tennessee Consumer Protection Act claim.

This is the second appeal in this proceeding to terminate a biological mother’s parental rights. On the first appeal, this court affirmed the trial court’s conclusion that the mother had abandoned the children but remanded the case to the trial court to make specific findings regarding whether the termination of the mother’s parental rights was in the children’s best interests. The trial court determined that terminating the mother’s rights would be in her children’s best interests, and the mother appealed. We have determined that the record contains clear and convincing evidence supporting the trial court’s conclusion.

We granted the applications for permission to appeal filed by the State of Tennessee and the petitioner to determine 1) whether State v. Burns, 6 S.W.3d 453 (Tenn. 1999), which clarified the analysis for determining lesser-included offenses, created a new constitutional rule that must be applied retroactively to post-conviction cases, 2) whether the petitioner was entitled to post-conviction relief under the DNA Relief Act, and 3) whether the petitioner was denied his right to the effective assistance of counsel at trial. The trial court and the Court of Criminal Appeals granted a new trial as to the petitioner's felony murder conviction because the jury had not been charged on the lesser-included offense of second degree murder but denied post-conviction relief as to the petitioner's conviction for especially aggravated robbery. After due consideration, we conclude 1) that State v. Burns did not create a new constitutional rule that must be retroactively applied to post-conviction cases, 2) that the petitioner was not entitled to a new trial or other relief based on DNA results, and 3) that the petitioner was denied his constitutional right to effective assistance of counsel. Accordingly, the judgment of the Court of Criminal Appeals is reversed, and the case is remanded for a new trial on felony murder and especially aggravated robbery.

The Petitioner, Charles Hall, appeals the trial court’s denial of his petition for habeas corpus relief.  The State has filed a motion requesting that this Court affirm the trial court pursuant to Rule 20, Rules of the Court of Criminal Appeals. The State’s motion is granted. The judgment of the trial court is affirmed.

The Petitioner Gregory Hedges appeals the trial court's denial of his petition for habeas corpus relief.  The State has filed a motion requesting that this Court affirm the trial court's denial of relief pursuant to Rule 20, Rules of the Court of Criminal Appeals. Petitioner has failed to allege any ground that would render the judgment of conviction void. Accordingly, we grant the State's motion and affirm the judgment of the lower court.

The court reiterates a statement first appearing in a published opinion in Ray v. Ray, 83 S.W.3d 726, 733 (Tenn.Ct.App.2001). Quoting from In Re M.O.,173 S.W.3d 13, 18-19 (Tenn.Ct.App. 2005, the court says:

The petitioner, Wayford Demonbreun, Jr., appeals the trial court's dismissal of his petition for habeas corpus relief. In this appeal, he alleges that his judgment of conviction for aggravated assault is void because the indictment was defective in that it failed to inform him of the essential elements of the offense for which he was convicted. The judgment of the trial court is reversed. The conviction at issue is vacated, habeas corpus relief is warranted as to that offense, and the cause is remanded for appropriate remedial action. Because the petitioner is also imprisoned for second degree murder, he is not entitled to release by virtue of this opinion.

David Helton and his wife, Charlotte Helton, brought suit against Glenn Enterprises, Inc., dba Linmar Hospitality, the operator of a Fairfield Inn in Knox County, for compensatory damages arising out of the theft of their drag racing vehicle and other personal property losses, all of which occurred while the plaintiffs were guests at the defendant's motel. At the conclusion of a jury trial, the court directed a verdict for the defendant, holding that there was no liability shown by the proof. This holding was predicated upon the fact that the parking lot where the plaintiffs parked their truck and trailer, while close to the defendant's motel, was not actually on the defendant's property. The plaintiffs appeal, arguing that the duty established by the Supreme Court in the case of McClung v. Delta Square Ltd. P'ship, 937 S.W.2d 891 (Tenn. 1996) should apply to the facts of this case. They contend that they made out a question for the jury on the McClung issue as well as on the issue of liability under the Tennessee Consumer Protection Act ("the TCPA"). We vacate the trial court's judgment on these two issues and remand for a new trial.

Inmate filed a medical malpractice and negligence action against Defendants involved in his care following a slip-and-fall injury at the prison and Defendants involved in the maintenance of the prison. The trial court dismissed all named Defendants and inmate appeals. We affirm the decision of the trial court in all respects.

The Petitioner, Eric Glover, appeals the lower court’s denial of his petition for post-conviction relief. The State has filed a motion requesting that this Court affirm the trial court pursuant to Rule 20, Rules of the Court of Criminal Appeals. The Petitioner is procedurally barred from pursuing appellate review of the lower court’s denial of post-conviction relief. Accordingly, the above-captioned appeal is dismissed.

The Petitioner, Jessie Hodges, appeals the lower court’s denial of his petition for post-conviction relief. The State has filed a motion requesting that this Court affirm the trial court pursuant to Rule 20, Rules of the Court of Criminal Appeals. The Petitioner is procedurally barred from pursuing appellate review of the lower court’s denial of post-conviction relief. Accordingly, the above-captioned appeal is dismissed.

The Petitioner, Ronald Dennis Crafton, appeals the trial court's denial of his motion to reopen his petition for post-conviction petition. The State has filed a motion requesting that this Court dismiss the above-captioned appeal, or in the alternative, affirm the trial court's denial of relief pursuant to Rule 20, Rules of the Court of Criminal Appeals. Because Petitioner has failed to properly invoke this Court’s jurisdiction, the above-captioned appeal is dismissed.

The appellant, Jarrod Johnston Slaughter, was convicted by a jury in the Madison County Circuit Court of driving under the influence (DUI), third offense. He received a sentence of eleven months, and twenty-nine days, with 208 days to be served in confinement. On appeal, the appellant challenges the sufficiency of the evidence supporting his conviction and the length of confinement imposed by the trial court. Upon our review of the record and the parties’ briefs, we affirm the judgment of the trial court.

Tammy Hopkins Lindsay ("Mother") and Dwight Kelley Lindsay ("Father") were divorced in December of 2000, but have returned to court numerous times since then. Most of the post-divorce controversy centers around the amount of Father's child support payment and the arrearages which have accrued since the divorce. After the most recent hearing, the Trial Court entered a detailed order resolving competing petitions filed by the parties. The only issue in this appeal concerns that portion of the Trial Court's order which requires Father to pay an additional $50 each time he fails to exercise co-parenting time on a weekend, and an additional $25 for each day that he fails to exercise co-parenting time on a holiday or during the summer. We vacate only this particular portion of the Trial Court's Order, and affirm the order as so modified.

This application for an interlocutory appeal concerns the jurisdiction of the Circuit Court for Rutherford County to consider a mother’s appeal from a decision of the Rutherford County Juvenile Court changing custody to the father. The Circuit Court denied the father’s motion to dismiss for lack of jurisdiction, but granted mother permission to appeal pursuant to Tenn. R. App. P. 9. We concur with the Circuit Court that this is an appropriate case for an interlocutory appeal. Because the Juvenile Court’s decision does not arise out of a dependant or neglect proceeding, the appeal of the Juvenile Court’s order lies to this court rather than the Circuit Court. Accordingly, we vacate the Circuit Court’s order and remand the case to the Circuit Court with directions to transfer the appeal to this court.¹

This primary issue on appeal is whether Dwight Kelley Lindsay ("Mr. Lindsay") was properly advised of his constitutional right to counsel before being found guilty on twelve counts of criminal contempt for his failure to pay court ordered child support and health insurance reimbursement payments. All parties to this appeal now agree that Mr. Lindsay was not adequately advised of his right to counsel. The judgment of the Trial Court finding Mr. Lindsay in criminal contempt is vacated.

The Defendant, Willie J. Simmons, was convicted of rape and sexual battery. The Defendant received an effective eight year sentence in the Department of Correction. On appeal, the Defendant argues that the trial court erred in denying alternative sentencing. We affirm the judgment of the trial court.

Amy Lynelle Gardner appeals the post-divorce modification of child support provisions.  Father, Richard Wendell Gardner, petitioned the court for modifications claiming the child support provisions were unconscionable, in part due to the fact the parties used one attorney for the divorce proceedings from which the child support provisions emanate. The trial court found Father was not properly represented and that certain provisions were unconscionable. As a result, the trial court relieved Father of the contractual obligation to pay support for a child past majority, required that Mother apply her state employee discount to the child’s college tuition, and awarded Father the tax deduction for the years he paid tuition. Finding no error, we affirm the trial court.

The plaintiff brought this action against her former employer, alleging that the defendant terminated her employment in retaliation for her pursuit of a claim for workers' compensation benefits. The trial court granted the defendant summary judgment, holding that the plaintiff failed to establish a prima facie case of retaliatory discharge and that she also failed to rebut the defendant's proffered legitimate reason for termination. The plaintiff appeals. We affirm.