APPELLATE COURT OPINIONS

WILLIAM C. KOCH, JR., P.J., M.S., dissenting. Both First National of North America, LLC and Michael Marks were victimized by Jerry Levine’s shady mortgage brokering. When the dust settled, Mr. Levine did not effectively assign Mr. Marks’s note and deed of trust to First National, thereby leaving First National with no security. At the same time, Mr. Levine did not pay off Mr. Marks’s existing mortgage, leaving him even deeper in debt than he was before. The majority has decided that Mr. Marks should bear the brunt of Mr. Levine’s defalcations by requiring him to partially indemnify First National. I disagree.

We granted this appeal to determine whether the Chancellor had jurisdiction to hear the employee's appeal after diagnostic tests ordered by her physician were denied by the employer's utilization review program. The Chancellor found that the diagnostic tests were reasonable and necessary and ordered that they be provided by the employer. The employer appealed, arguing that the Chancellor did not have jurisdiction to hear the appeal because the employee's recourse was limited to review by the Commissioner of Labor and Workforce Development's utilization review program. The appeal was argued before the Special Workers' Compensation Appeals Panel pursuant to Tennessee Code Annotated section 50-6-225(e)(3), but the appeal was transferred to the full Supreme Court prior to the Panel issuing its decision. After reviewing the record and applicable authority, we conclude that the Chancellor had jurisdiction to consider the employee's appeal of the decision to deny diagnostic tests made by the employer's utilization review program. We therefore affirm the judgment.

Several years after Dana Bryan Ellis ("Father") and Susan Lynn Ellis (Johnson) ("Mother") were divorced, Mother filed a petition seeking to increase Father's child support payments. Father filed a counterclaim seeking a downward deviation in his child support payments claiming he was exercising visitation in excess of that contemplated by the Child Support Guidelines. After a trial, the Trial Court found Father's annual gross wages were $80,000 and set current child support  payments based on that amount. The Trial Court also awarded retroactive child support to the date the petition for modification was filed and concluded the retroactive support also should be based on Father's current salary of $80,000. The Trial Court denied Father's request for a downward deviation after concluding it was in the best interests of the children not to reduce Father's child support payment. Father appeals. We affirm in part, vacate in part, and remand.

A Marshall County jury convicted the Defendant, Shawn Edward Hazeltine, of three counts of aggravated assault and three counts of reckless endangerment. The trial court merged the reckless endangerment convictions with the aggravated assault convictions and then sentenced the Defendant to an aggregate seven years and seven months in prison. On appeal, the Defendant contends that: (1) insufficient evidence exists to support the convictions; (2) the trial court erred in not consolidating the three counts of reckless endangerment; and (3) the trial court erred by not ordering alternative sentencing and by ordering consecutive sentencing. We conclude that sufficient evidence exists in the record to support the Defendant's convictions and that the trial court did not err in sentencing the Defendant. However, we conclude that the trial court erred by failing to consolidate the three reckless endangerment convictions into one conviction. We further conclude that the trial court erred by entering a judgment form for Count 2 showing a conviction for reckless aggravated assault, because the trial court dismissed Count 2 of the indictment. Therefore, we remand the case to the trial court for further proceedings consistent with this opinion.

Bobby R. Dyer appeals from his Williamson County Circuit Court convictions of aggravated burglary and theft of property valued at $1,000 to $9,999. He claims that his theft conviction is not supported by sufficient evidence and that he was improperly sentenced. Because we are unconvinced of reversible error, we affirm.

Following an evidentiary hearing on the issue whether Bernard Kane Johnson, the petitioner, had been denied effective assistance of counsel, the post-conviction court determined that no constitutional violation had been shown and that the petitioner's sexual battery, aggravated kidnapping, and aggravated assault convictions were not void or voidable. Finding no error, we affirm the post-conviction court's dismissal of the petition.

The petitioner, James Ray Barlett, filed a petition for writ of habeas corpus in the Wayne County Circuit Court, alleging that his sentence was expired. After examining the record, the trial court dismissed the petition. The petitioner appeals. Upon review of the record and the parties' briefs, we affirm the judgment of the trial court.

The appellant, Harold Garland Mabry, Jr., pled guilty in the Davidson County Criminal Court to possession of .5 grams or more of cocaine and possession of a firearm during a felony. Pursuant to the plea agreement, the appellant received a total effective sentence of eight years incarceration in the Tennessee Department of Correction. As a condition of his plea, the appellant reserved a certified question of law concerning the validity of the search warrant underlying the search of his residence. Upon our review of the record and the parties' briefs, we affirm the judgments of the trial court.

The defendant, Brandon Shawn Jones, pled guilty to burglary of a motor vehicle and possession of burglary tools. The Knox County Criminal Court ordered the defendant to serve an effective two-year sentence with 120 days in confinement followed by probation. The defendant appeals the denial of total probation. We affirm the judgments of the trial court.

Appellants sued Appellee on theories of common law misrepresentation and violation of the Tennessee Consumer Protection Act, arising from the sale of a used vehicle. A jury returned a verdict for Appellants on both theories and Appellants elected to take their remedy under the common law claim, which included an award of punitive damages. The trial court denied Appellants’ prayer for attorney fees, which were not available under the common law remedy but only under the Consumer Protection Act claim. Having been denied attorney fees, Appellants requested that they be allowed to amend their election of remedies. This request was denied. Appellants appeal. We affirm.
 

The petitioner, Larry Stephen Brumit, filed for post-conviction relief from 1996 convictions for two counts of first degree murder and one count of conspiracy to commit first degree murder. The post-conviction court denied the petition. In this appeal, the petitioner argues (1) that the petition was not barred by the applicable statute of limitations; and (2) that he was denied the effective assistance of counsel. The judgment is affirmed.

I disagree with the standard of review employed by the court in this case for the reasons discussed at more length in In Re Z.J.S., No. M2002-02235-COA-R3-JV, 2003 WL 21266854, at *18-22 (Tenn.Ct.App. June 3, 2003) (No Tenn. R. App. P. 11 application filed); Estate of Acuff v. O’Linger, 56 S.W.3d 527, 533-37 (Tenn.Ct.App. 2001). I agree, however, that a review of the evidence in the case discloses that the truth of the factual conclusions made by the trial are “highly probable” and thus the clear and convincing evidence standard is met. Therefore, I concur with the court’s decision to affirm the order terminating R.G.L.’s parental rights.

The petitioner appeals the Anderson County Criminal Court's denial of habeas corpus relief relating to his convictions for aggravated rape and rape. On appeal, the petitioner contends the original sentencing court erred in amending the judgments to reflect 100% release classification after they became final. We affirm the lower court's judgment denying habeas corpus relief.

We granted permission to appeal in this case to determine whether the Chancellor erred in denying temporary total disability benefits because he concluded that injuries due to an idiopathic loss of consciousness are not compensable under the Workers' Compensation Act. We hold that an injury due to an idiopathic condition is compensable if an employment hazard causes or exacerbates the injuries. The accident arises out of employment if there is a causal connection between the conditions under which the work is performed and the resulting injury. This causal link must be between the employment and the injury, rather than between the employment and the idiopathic episode. We affirm the Chancellor's factual finding that Phillips's injuries occurred within the course of his employment. Thus, the judgment of the Chancellor is reversed in part, affirmed in part, and this case is remanded to the chancery court for reinstatement of temporary total disability benefits and further proceedings consistent with this opinion.

This is primarily a child custody dispute. The father and mother lived together with their infant son and the mother's two older sons in the mother's house trailer before moving into a house purchased by the mother with a down payment provided by the father. When their son was approximately eight months old, the parties separated and thereafter began a contentious legal battle over his custody. Following a bench trial, the trial court awarded the mother primary custody, granted the father broad visitation rights, and denied the father's request for the return of his down payment and closing costs, finding there was no equity in the house. The father appeals the trial court's award of primary custody to the mother and its denial of his request for the return of his down payment and closing costs. We affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.

This appeal involves the termination of the parental rights of an incarcerated biological father of a five-year-old child. The child’s mother and her new husband filed a petition in the Chancery Court for Lincoln County seeking to terminate the biological father’s parental rights and to approve the new husband’s adoption of the child. Following a bench trial, the trial court entered an order on August 29, 2003 granting the petition to terminate the biological father’s parental rights on the ground of abandonment. The biological father appealed. We concur with the trial court’s conclusion that the father abandoned his child by willfully failing to support and visit the child and that terminating the biological father’s parental rights is in the child’s best interests. Accordingly, we affirm the judgment.
 

A Davidson County Criminal Court jury convicted the defendant, Bryan Christopher Hester, of second degree murder, a Class A felony, and the trial court sentenced him as a Range I, violent offender to twenty-five years in confinement. The defendant appeals, claiming that (1) the evidence is insufficient to support his conviction; (2) the trial court erred by denying his motion to continue when the state revealed three days before trial that the victim had been taking an antidepressant and seeing a psychiatrist; (3) the trial court erred by allowing hearsay into evidence; (4) the trial court erred by allowing the state to introduce a bow saw into evidence; (5) the trial court erred by allowing a witness to testify about experiments conducted on the murder weapon when the state failed to prove the chain of custody; (6) the trial court erred by allowing the state medical examiner to testify; and (7) the defendant's sentence is excessive. We conclude that the trial court erred by allowing hearsay into evidence but that the error was harmless. We also conclude that the defendant's sentence is not excessive, and we affirm the judgment of the trial court.

The defendant, Jarret A. Guy, was convicted of facilitation of first degree premeditated murder, felony murder, and robbery. The trial court merged the facilitation of premeditated first degree murder conviction into the conviction for felony murder and, after finding the existence of five aggravating circumstances, the jury imposed a sentence of life without the possibility of parole. The trial court imposed a concurrent sentence of fifteen years for the robbery conviction. In this appeal, the defendant asserts that (1) the evidence is insufficient to support his convictions; (2) the trial court included erroneous definitions of "knowing" and "intentional" in its instructions to the jury; (3) the trial court erred by severing his trial from that of his co-defendant, Jacob Edward Campbell; (4) the sentence is excessive; and (5) the cumulative effect of the errors at trial require reversal. The judgments of the trial court are affirmed.

Ray D. Driver appeals the Campbell County Criminal Court’s judgment requiring his bail bonding company, Driver Bail Bonds, to pay $570.50 as a bond forfeiture because Stanley Ray Davis failed to appear at a general sessions court probation hearing. The appellant contends that T.C.A. § 40-11-138(b) relieved his company from liability under the bond because the defendant already had pled guilty and been sentenced. He also claims that his company is not liable for the defendant’s fine and costs because his company did not assume such obligations in the defendant’s bond. We hold that appellant remained obligated under the bond and that the trial court did not require him to pay the defendant’s fine and costs. The trial court is affirmed.

After twenty-five years of marriage, Father filed for divorce asserting irreconcilable differences and inappropriate marital conduct due to Mother's alleged prescription drug abuse. Father requested that he be the primary residential parent of the parties' two minor children. Mother filed an answer and counterclaim also requesting to be the primary residential parent. The trial court granted Father the divorce but designated Mother as the primary residential parent. Father appealed, asserting that the trial court erred in designating Mother as the primary residential parent and in setting the residential schedule. We affirm.

I agree that Tennessee Code Annotated section 40-11-130 governs the issue of the duration of Driver Bail Bonds' obligation. The current statute, passed in 1996, permits the trial court to extend the liability of the surety on a bail bond for the length of a sentence of probation by providing in a written order that the current bond is sufficient. In this case, the General Sessions Court noted on the judgment form that the defendant and surety were to remain liable under the original bond. Thus, Driver remained obligated under the terms of the original bond to secure the defendant's appearance at the March 11, 2002, hearing.

The appellant, Jama Elaine Penley, was convicted by a Greene County jury of facilitation of first degree premeditated murder, a Class A felony. Following a sentencing hearing, the trial court sentenced the appellant as a Range I standard offender to twenty-five years in the Tennessee Department of Correction. On appeal, the appellant challenges the denial of her motion for judgment of acquittal and the sentence imposed by the trial court. Upon review of the record and the parties' briefs, we remand to correct a clerical error in the judgment but otherwise affirm the judgment of the trial court.

This appeal involves review of a certified question of law following the Defendant, James D. Rowland's, guilty plea to DUI. See Tenn. R. Crim. P. 37(b)(2)(1). Because we find that the certified question is not dispositive, we are without jurisdiction to entertain the appeal. Accordingly, the appeal is dismissed.

The petitioner, Patrick D. Paris, appeals the denial of his post-conviction relief petition relating to his convictions for attempted first degree murder and especially aggravated robbery. On appeal, the petitioner contends: (1) he received ineffective assistance of counsel at trial; and (2) the trial court erred in failing to charge attempted voluntary manslaughter as a lesser-included offense of attempted first degree murder. We affirm the judgment of the post-conviction court.