APPELLATE COURT OPINIONS

After the trial court denied her motion to suppress, the defendant, Rose Mary Adams, entered a best interest guilty plea to possession with intent to deliver a Schedule II controlled substance, methamphetamine, a Class C felony, and to possession of drug paraphernalia, a Class A misdemeanor. After conducting a sentencing hearing, the trial court sentenced the defendant to four years in the Community Correction program after four months of service in the county jail and fined the defendant $2,000 for the possession with intent to sell conviction. For the possession of drug paraphernalia conviction, the defendant received a concurrent sentence of eleven months and twenty-nine days with all but four months suspended. The defendant now appeals a certified question of law challenging the trial court’s denial of her motion to suppress the evidence. We affirm the judgment of the trial court.

The appellant, Neil M. Friedman, pled guilty to misdemeanor assault and was sentenced to eleven months and twenty-nine days to be served on probation. While serving his sentence, the appellant pled guilty in the Sullivan County Criminal Court to aggravated assault and violating his probation. For the aggravated assault conviction, the trial court sentenced him to three years and granted his request for full probation. The trial court also revoked his misdemeanor probationary sentence and ordered him to serve his original sentence as ninety days in jail and the remainder on probation. Subsequently, a probation violation warrant was filed, and the trial court revoked probation and ordered the appellant to serve both sentences in confinement. On appeal, the appellant argues that the trial court did not have jurisdiction to revoke his misdemeanor probationary sentence because the sentence expired before the revocation warrant was issued. Upon review of the record and the parties' briefs, we affirm the judgments of the trial court but remand for entry of a corrected judgment as to the aggravated assault.

Following a hearing in October of 2000, three out of seven members of the Board of Paroles voted to parole a prisoner who was serving a life sentence for murder. Because of a 1997 statute that requires four members of the Board to concur on the parole of prisoners convicted of certain grave offenses, parole was denied. The prisoner did not seek review of that decision. Parole was again denied after a March 2003 hearing, with only two Board members voting for parole. The prisoner filed a petition for common law writ of certiorari, contending that the Board's refusal to release him after the 2000 Board vote violated the constitutional prohibition against ex post facto enactments. He argued that he was entitled to the benefit of an earlier statute which allowed prisoners to be paroled, regardless of offense, if they could obtain the positive votes of three members of the Board. The trial court dismissed the petition, holding that it was untimely, and that in any case, the application of the 1997 statute did not implicate any ex post facto concerns. We affirm the trial court.

The appellant, Joseph Vermeal, was convicted by a jury in the Warren County Circuit Court of aggravated sexual battery and was sentenced to nine years incarceration in the Tennessee Department of Correction. On appeal, the appellant alleges that the evidence was insufficient to support his conviction, and he contends that the trial court erred in refusing to permit his expert witness to testify. Upon our review of the record and the parties' briefs, we affirm the judgment of the trial court.

The majority’s analysis of the Consumer Protection Act is just excellent, however, I respectfully disagree with the majority’s opinion that All American did not violate the Act in its representations made to this plaintiff. I agree with the majority’s detailed history of the TCPA and that it is much broader in scope than common-law fraud, that it must be construed liberally to protect consumers, and that the plaintiff must prove an “unfair” or “deceptive” act by the defendant. I also agree that “the essence of deception is misleading consumers by a merchant’s statements, silence, or actions.” I disagree with the majority’s conclusion, however, that All American did not act deceptively in its dealings with Ms. Tucker, and I believe that the majority opinion overlooks certain key facts in this regard. The majority neither accords the Trial Court the presumption of correctness in its fact finding as required by Rule 13(d), nor does it defer to the Trial Court on the issue of the credibility of the witnesses.¹

I agree with the result reached by the majority. With respect to the motion to amend, I believe the trial court should have entered an order allowing the amendment; after which it could have entered its order dismissing the plaintiffs’ claim. I believe this is the better practice under Tenn. R. Civ. P. 15. However, since the trial court addressed the merits of the complaint, as if it had been amended, any error in refusing to formally allow the amendment is harmless in nature. See Tenn. R. App. P. 36 (b).

This appeal involves a dispute stemming from the shoddy construction of a modular house. The property owner filed suit in the Circuit Court for Wilson County against the contractor who constructed the house and the manufacturer of the house modules. The trial court granted a default judgment against the contractor and, following a bench trial, awarded the homeowner a $49,506.94 judgment against the manufacturer. The manufacturer has appealed. We have determined that the trial court erred when it held that the manufacturer engaged in unfair or deceptive trade practices in violation of the Tennessee Consumer Protection Act and that the manufacturer was vicariously liable for the negligence of the contractor.

The Trial Court entered Judgment for plaintiffs for damages, but refused to permit plaintiffs to amend the complaint to claim defendants violated the Consumer Protection Act, and disallowed plaintiffs’ Rule 11, Tenn. R. Civ. P. Motion for Sanctions. On appeal, we affirm.

The appellant, Leon James Anderson, was indicted by the Williamson County Grand Jury for driving under the influence ("DUI"), speeding, driving with a revoked license, and fourth offense DUI. The appellant was convicted by a jury on the first three counts, and waived his right to a jury for the fourth offense DUI charge. The trial court found the appellant guilty of fourth offense DUI. The appellant was sentenced by the trial court to two (2) years for the driving under the influence fourth offense, thirty days for speeding, and six months for driving on a revoked license, all to be served concurrently. After the denial of a motion for new trial, this appeal ensued. On appeal, the appellant challenges the sufficiency of the evidence and contends his sentence is excessive. Because the evidence is sufficient to support the convictions and the sentence is not excessive, we affirm the judgment of the trial court. However, we remand the matter to the trial court for the limited purpose of correcting errors in some of the judgments.

This workers’ compensation appeal has been referred to the Special Workers’ Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated § 50-6-225(e)(3) for hearing and reporting of findings of fact and conclusions of law.  The trial court found the employee failed to prove her claims of occupational disease or aggravation of pre-existing condition. We affirm.

This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated § 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 injured employee insists the award of twenty-five percent vocational disability to the body as a whole, based on a ten percent permanent medical impairment rating offered by the treating physician, is inadequate.  The employee contends that the trial court erred in setting the impairment rating at ten percent and that the evidence preponderates for a finding of twenty-five percent medical impairment rating, subject to a multiplier of two and one-half. We hold that the evidence does not preponderate against the trial court's findings as to the extent of anatomical and vocational disability. Accordingly, the judgment of the trial court is affirmed.

The defendants, inmates at Riverbend Penitentiary, successfully temporarily escaped from custody while being transported to a court appearance. At trial, Defendant Van Ulzen was convicted of two counts of aggravated robbery (Class B felony), two counts of aggravated assault (Class C felony), four counts of false imprisonment (misdemeanor), one count of theft (misdemeanor), and pled guilty to one count of felony escape (Class E felony). Defendant Coffelt was convicted of one count of aggravated assault (Class C felony), three counts of theft (misdemeanor), four counts of false imprisonment (misdemeanor), and one count of felony escape (Class E felony). On appeal, Defendant Van Ulzen appeals his convictions and sentence. Defendant Coffelt appeals aspects of his convictions. Upon review of Defendant Van Ulzen's appeal, we reverse and dismiss one count of aggravated assault as violative of double jeopardy. All other convictions and judgments as to both defendants are affirmed. We remand for correction of judgments as to Defendant Coffelt.

In a single proceeding, the juvenile court terminated the parental rights of a mother to her three children and the parental rights of the father of one of those children, ruling that they had abandoned the children. The mother and the father filed separate appeals, which we have consolidated for decision. We reverse because the proof at trial did not rise to the level required to establish abandonment as defined by applicable statutes.

This workers’ compensation appeal has been referred to the Special Workers’ Compensation Appeals Panel in accordance with Tennessee Code Annotated § 50-6-225(e)(3) for hearing and reporting of findings of fact and conclusions of law. In determining whether the appellant was an employee or an independent contractor, the trial court evaluated the factors listed in Tenn. Code Ann. § 50-6-102(10) distinguishing between employees and independent contractors and considered the evidence to be inconclusive. The trial court based its determination of independent contractor status on a Form I-18, Election of Non-Coverage by Sub-Contractor, filed by the appellate almost two years prior to the accident. The appellant contends that the trial court erred by determining he was an independent contractor. For the reasons set forth below, we reverse the holding of the trial court and remand for a determination of degree of disability.

This appeal involves a sales and use tax assessment issued by the Tennessee Department of Revenue against a taxpayer engaged in the business of fabricating steel products for use in various structures. The taxpayer obtained purchase orders from three churches for raw materials to be used in the fabrication of steel products which were to be incorporated into the churches then under construction. The taxpayer secured the raw materials, fabricated the steel products, and installed them in the churches. The taxpayer did not pay sales or use tax on any of the raw materials used in the fabrication process. The department subsequently audited the taxpayer and assessed a tax liability for taxes owed on the materials. The taxpayer paid the amount assessed and filed suit in the chancery court to contest the assessment. Specifically, the taxpayer asserted that it was entitled to an exemption under section 67-6-209(b) of the Tennessee Code. After both parties filed cross-motions for summary judgment, the chancery court granted the department's motion and denied the taxpayer's motion. We affirm in part, reverse in part, and remand this case to the trial court for further proceedings consistent with this opinion.

Following a hearing, the Knox County Sheriff's Department Merit System Council ("the Council") voted to uphold Sheriff Tim Hutchison's termination of the plaintiff, James Edward Dunn. Dunn filed a petition for writ of certiorari in the trial court. He also filed a separate complaint in the same court alleging that the Council had violated the Open Meetings Act. Each side filed a motion for summary judgment on this latter issue. The trial court denied both motions. The trial court then held that the Council's decision to uphold Dunn's termination was supported by material evidence; but the court remanded the case to the Council, because the court held that the Council had failed to follow one of its procedural rules. Both parties have raised issues on appeal. We affirm.

During surgery to repair a bilateral hernia, Yung Gil Lee, M.D. ("Defendant") also performed an orchiectomy and removed Darrell Massingale's ("Plaintiff") left testicle. Plaintiff sued Defendant claiming, in part, that Defendant had committed both medical malpractice and medical battery. The Trial Court granted Defendant's motion for a directed verdict on the claim of medical battery. The claim of medical malpractice went to the jury and resulted in a mistrial. The Trial Court then reconsidered Defendant's motion for a directed verdict on the claim of medical malpractice and entered an order granting a directed verdict on that claim as well and dismissing the case. Plaintiff appeals claiming that the Trial Court erred in directing a verdict as to both the medical battery claim and the medical malpractice claim. We affirm the directed verdict on the medical malpractice claim, reverse the directed verdict on the medical battery claim, and remand for a new trial on Plaintiff's medical battery claim.

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 findings of fact and conclusions of law. In this appeal, the Second Injury Fund insists that the trial court improperly allocated 90% of the disability award to the Fund and further that the trial court erred in finding the employee permanently and totally disabled. For the reasons set out below, the panel has concluded that the evidence fails to preponderate against the findings of the trial court. Judgment of the trial court is affirmed with costs assessed against the Second Injury Fund.

The Appellant, Kendrick Lamont Brooks, appeals the revocation of his probation by the Madison County Circuit Court. On appeal, Brooks argues that the trial court was without authority to revoke his probation because the violation warrant was issued after his sentence had expired. Finding this argument without merit, we affirm the judgment of the trial court.

J. Stephen Amison and wife, Pamela G. Amison ("the plaintiffs"), purchased a house from Jack D. McCarty and wife, Bertha B. McCarty ("the defendants"). Thereafter, the plaintiffs sued the defendants for damages and, in the alternative, for rescission of the contract of purchase. The plaintiffs alleged that, unbeknownst to them when the contract was signed and when the sale subsequently was closed, the house was infested with termites; that the defendants had prior knowledge of the termite infestation; and that the defendants intentionally or negligently misrepresented the true condition of the house. Following a bench trial, the court decreed rescission, awarded the plaintiffs discretionary costs, and denied the plaintiffs' request for their attorney's fees. Both sides raise issue on appeal. 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 determined that the employee was entitled to retain temporary total disability benefits paid by the employer, but was not entitled to any additional benefits. On appeal, the employee submits that the trial court erred in (1) holding that her injury did not entitle her to further benefits or reimbursement of past medical expenses, (2) adopting inappropriate contingent findings of fact, and (3) making a factual finding that she resigned from her employment. The employer raises the additional argument that the trial court erred by denying its motion for reimbursement of temporary total disability benefits. For the reasons set forth below, we affirm the judgment of the trial court.

This appeal involves a dispute between two brothers over the use of a roadway that lies on their adjacent tracts of property. The issue presented is whether Walker Gray Haun has an easement across the property of his brother, Louis Eugene Haun, Jr. The trial court granted Walker Gray Haun an easement either by prescription or by implication which allowed him to use the roadway that had existed for at least fifty years and provided the only vehicular access to a rental house on his property. We hold that Walker Gray Haun did not establish a prescriptive easement, but that his proof satisfied the elements of an easement by implication, and therefore we affirm the trial court’s judgment.

The issues presented in this divorce case are whether the trial court erred in calculating Mr. Troglen's child support obligation; and whether the trial court erred in awarding Ms. Troglen transitional alimony. The trial court established Mr. Troglen's monthly child support obligation at $755. Additionally, the trial court ordered Mr. Troglen to pay to Ms. Troglen transitional alimony in the amount of $400 per month for a period of five years. We hold that the child support was properly calculated at $755 per month and that the trial court properly awarded Ms. Troglen alimony. However, we modify the alimony award from $400 per month transitional alimony for five years to $400 per month rehabilitative alimony for five years.

Lee Ketchersid, a tenured teacher in the Rhea County School System, appealed her dismissal to the Rhea County Board of Education (“the School Board”). Following a hearing, the School Board determined that the evidence supported the charges against Mrs. Ketchersid of insubordination, incompetence, and inefficiency under the Teachers’ Tenure Act, Tenn. Code Ann. § 49-5-501, et seq., and voted to terminate Mrs. Ketchersid as a tenured teacher. Mrs. Ketchersid appealed the School Board’s decision to the trial court, which, following a de novo review, held that her dismissal was supported by sufficient evidence. Mrs. Ketchersid appeals, arguing that the trial court erred in this determination. We affirm.

The plaintiff purchased a house that was marketed by the defendant realtors. The house had been described as including over 5,800 square feet of living space. After the purchase, the plaintiff discovered that the actual square footage of the house was considerably less, depending on what was included. He sued for unfair or deceptive practices under the Tennessee Consumer Protection Act and for intentional misrepresentation. The trial court dismissed his complaint on summary judgment, and ordered the plaintiff to pay all the defendants' attorney fees. We affirm the dismissal, but modify the award of attorney fees.