APPELLATE COURT OPINIONS

The petitioner, John C. Johnson, filed a petition for post-conviction relief and a petition for a writ of error coram nobis. After an evidentiary hearing, the post-conviction court denied the petition for post-conviction relief. The petition for writ of error coram nobis was dismissed without a full evidentiary hearing. In this consolidated appeal, the petitioner challenges the post-conviction court’s rulings on both petitions.¹ Upon our review of the record and the parties’ briefs, we affirm the dismissal of the petition for a writ of error coram nobis. However, we reverse the denial of post-conviction relief and remand for a new trial.

The Appellant, Roger Alan Lawson, appeals the sentencing decision of the Sullivan County Criminal Court following the revocation of his suspended sentences. While on supervised probation, a violation warrant was issued alleging that Lawson had failed to obey the law by driving on a revoked license. After a revocation hearing, Lawson was found to be in violation of his probation, and his original effective eight-year sentence to the Department of Correction was reinstated. On appeal, Lawson argues that the trial court abused its discretion by ordering confinement of the eight-year sentence instead of reinstating his probation. After review, we find no error and affirm the judgment of the trial court.

The defendant, Steve Allen Click, was convicted of three counts of aggravated rape and one count of evading arrest. The trial court imposed consecutive sentences of forty years for each aggravated rape and a concurrent sentence of eleven months and twenty-nine days for evading arrest. The effective sentence is, therefore, 120 years. In this appeal, the defendant asserts (1) that the trial court erred by failing to merge two of the aggravated rape convictions; (2) that the evidence is insufficient to support the convictions for aggravated rape; (3) that the prosecutor's closing argument was improper; and (4) that the trial court erred by imposing consecutive sentences. The judgments of the trial court are affirmed.

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.

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.

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.

I concur with the legal principles set forth in the majority opinion and particularly with the recognition of the importance of affording a parent an opportunity to request appointed counsel, and when appropriate, a hearing and due inquiry on the request for appointed counsel in dependent and neglect proceedings. I, however, respectfully dissent, believing the facts, particularly those demonstrating the irresponsible acts and omissions of David H. and Mary Ellen H. in seeking appointed counsel and then retaining separate counsel, are sufficient to affirm the trial court.

After a hearing, the Circuit Court declared seven children to be dependent and neglected and determined that their parents had committed severe child abuse. The parents claim on appeal that the court erred by refusing their request that counsel be appointed to represent them at the hearing.  After carefully reviewing the record, we find that the trial court failed to conduct a sufficient inquiry to determine whether or not the parents were financially able to retain their own counsel, and we accordingly vacate the order concluding that the children were dependent and neglected.

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.

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).

Joan Oates (“Plaintiff”) was employed by the Chattanooga Publishing Company (“Defendant”) for approximately twenty-three years. In January of 2004, Plaintiff was observed on Defendant’s security camera making obscene gestures with her middle finger toward the camera and then covering the security camera with a cup for a period of time. Defendant terminated Plaintiff’s employment. Plaintiff filed this lawsuit alleging that she was terminated because of a disability.  Plaintiff also claimed that she was subjected to a hostile work environment and malicious harassment while employed by Defendant. Plaintiff also sued for intentional and/or negligent infliction of emotional distress. The Trial Court granted Defendant’s motion for summary judgment on all of Plaintiff’s claims. Plaintiff appeals, and 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. The trial court awarded plaintiff sixty (60) percent permanent, partial vocational disability to the right leg. On appeal, the employer contends that the employee's injury did not arise out of his employment and is therefore not compensable. The employer alternatively argues that the trial court's permanent, partial vocational disability award is excessive. We affirm the judgment of the trial court.

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.

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.

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 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.

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.

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.

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 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.

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 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 petitioner, Shon Maurice Pierce, appeals the Dyer County Circuit Court’s denial of his petition for post-conviction relief for second degree murder and resulting twenty-year sentence. He contends that he received the ineffective assistance of counsel because his trial attorney allowed him to plead guilty before the trial court held a hearing on his motion to suppress his confession. Upon review of the record and the parties’ briefs, we affirm the judgment of the post-conviction court.