APPELLATE COURT OPINIONS

The defendant, Edward Thompson, appeals the Shelby County Criminal Court's denial of his petition to suspend his sentence to probation. The defendant pled guilty to attempted rape of a child, a Class B felony, and received an agreed sentence of ten years. However, as part of the agreement, he reserved the right to request that the trial court sentence him to probation. On appeal, he contends that the trial court erred in its decision by "not appropriately bas[ing] the denial of probation upon the sentencing considerations set forth in Tennessee Code Annotated 40-35-103." Following review of the record, we conclude that the trial court did not err in denying the petition.

In this workers’ compensation action, employee sought benefits for injuries to his hips, shoulders, and feet. The trial court awarded benefits for injuries to his shoulders and feet but found that he failed to give timely notice of his bilateral hip injuries to his employer and dismissed those claims. Employee has appealed, contending that the trial court erred in finding that he did not provide timely notice of his hip injuries and that the complaint is barred by the statute of limitations. He requests that temporary disability, medical, and permanent disability benefits be awarded for those claims. Employer argues that the trial court erred in its calculation of the amount to be set off for social security retirement benefits. We conclude that the employee gave sufficient notice of his hip injuries to satisfy the requirements of the workers’ compensation statute. However, we find that those claims are barred by the applicable statute of limitations. The judgment is affirmed in all other respects.

The Petitioner, Kardius Wilkes, was convicted by a jury of one count of first degree murder. This Court affirmed his conviction on direct appeal, and his application for permission to appeal was denied by the Tennessee Supreme Court. See State v. Kardius Wilkes, No. W2001-02172-CCA-R3-CD, 2002 WL 818255 (Tenn. Crim. App., Jackson, Apr. 26, 2002), perm. app. denied (Tenn. Oct. 7, 2002). He later filed a petition for post-conviction relief. Following an evidentiary hearing, the post-conviction court denied the Petitioner relief. In this appeal, the Petitioner contends that the post-conviction court erred in denying him relief because his trial counsel failed to: (1) impeach a particular witness using transcripts of the Petitioner's first trial, which ended in a mistrial; (2) adequately meet with the Petitioner before his second trial; (3) call the Petitioner's brother as a witness; and (4) adequately investigate and interview potential witnesses. After our review, we affirm the post-conviction court's denial of relief.

The owner and operator of a tractor-trailer filed a workers' compensation claim against a common carrier for injuries that he incurred while attempting to verify a load to transport to another location. The trial court ruled that the owner/operator, while an independent contractor, was entitled to workers' compensation benefits by virtue of a written contract between the parties extending coverage, as permitted by statute. The trial court reserved judgment on the award and permitted an interlocutory appeal. The Supreme Court granted the appeal and referred it to the Special Workers' Compensation Appeals Panel pursuant to Tennessee Code Annotated section 50-6-225(e)(3) and Tennessee Supreme Court Rule 51. Because the evidence does not preponderate against the findings of fact made by the trial court, the judgment is affirmed. The cause is remanded to the trial court for the disposition of the remaining issues.

Defendant, Jonathon C. Hood, appeals the dismissal of his motion to discharge fines. More specifically, he contends that because his sentence was expired, the trial court erred in dismissing the motion. The State argues that this Court does not have jurisdiction to hear this appeal because Rule 3 of the Tennessee Rules of Appellate Procedure does not provide for an appeal as of right from the denial of a motion to discharge fines. We agree. Additionally, the record is incomplete. Therefore, Defendant's appeal is dismissed.

In this appeal, the defendant claims that his due process rights were violated because the judge presiding over his probation revocation had previously served as a member of his drug court team and had received ex parte information regarding the defendant's conduct at issue by virtue of his prior involvement. After due consideration, we agree that the Due Process Clause requires that a defendant's probation revocation be adjudicated by a judge who has not previously reviewed the same or related subject matter as part of the defendant's drug court team. Accordingly, we reverse the decision below and remand the defendant's case for a new hearing in front of a different judge.

Purchasers of real estate brought suit against the sellers as well as against the appraiser, the sellers' real estate agent, the agent's managing broker and brokerage firm alleging fraudulent misrepresentation and breach of duty to disclose adverse facts related to the property purchased. Upon their motions for summary judgment, the appraiser, real estate agent, the agent's managing broker and brokerage firm were dismissed as defendants; the purchasers appeal the dismissal of the real estate agent, the managing broker and the brokerage firm. Finding no error, we affirm.

The trial court granted the employee’s post-judgment motion to compel his employer to provide certain medical treatment. The employer has appealed, contending that the trial court erred by finding that the proposed treatment was related to the work injury. We affirm the judgment.

The employee alleged that he had sustained a compensable injury to his back. His employer denied the claim due to discrepancies between his account of the event that caused the injury and certain medical records. The trial court found that the employee had failed to sustain his burden of proof, and dismissed the complaint. The employee appealed, contending that the evidence preponderates against that finding. We affirm the judgment of the trial court.

The Defendant, Lance Burton, was convicted by a Shelby County Criminal Court jury of one count of aggravated robbery, a Class B felony. The trial court sentenced the defendant as a mitigated offender to eight years in the custody of the Tennessee Department of Correction. In this appeal as of right, he contends that the evidence is insufficient to support his conviction and that the State committed prosecutorial misconduct during closing argument. Following our review, we affirm the judgment of the trial court.

The petitioner, Marvin Anthony Matthews, appeals pro se the Circuit Court of Lake County's order dismissing his petitions for habeas corpus relief. The petitioner claims he is being illegally detained because his sentence for third degree burglary has expired. The State filed a motion requesting this court to affirm the trial court's order pursuant to Rule 20 of the Rules of the Court of Criminal Appeals. Following our review, we grant the State's motion and affirm the judgment of the trial court.

Pursuant to Tennessee Supreme Court Rule 51, this workers’ compensation appeal has been referred to the Special Workers’ Compensation Appeals Panel for a hearing and a report of findings of fact and conclusions of law. Emory Pegram (“Decedent”) was the President of Findley & Pegram Company, Inc. (“Employer”). He died as a result of a motorcycle accident. Approximately ten minutes before the accident, he had made a bank deposit for the business. He thereafter drove past his office and home. Employer had no active projects in the direction Decedent was traveling at the time of the accident. There was, however, a potential future project in that direction. Decedent had not informed any co-workers or employees where he was going or for what purpose. He was carrying business documents, a business cell phone, and a tool. The trial court concluded that he was a traveling employee at the time of the accident, and awarded workers’ compensation death benefits to his widow. The trial court also awarded post-judgment interest for the five-month period between the announcement of the court’s decision and entry of the judgment. Employer has appealed. We conclude that Decedent was not a traveling employee, but was acting in the course of his employment at the time of the accident. We further conclude that the workers’ compensation statute does not authorize an award of interest prior to entry of the judgment. The judgment is modified to remove the award of post-judgment interest. It is otherwise affirmed.

In this action the School Board brought an action to dismiss plaintiff, a tenured teacher. Following a hearing, the Board of Education voted to suspend plaintiff without pay from November 27, 2007 to May 23, 2008, and required other sensitivity training and a probationary period. Plaintiff petitioned for a writ of certiorari to the Chancery Court, and the Chancellor affirmed the suspension on the grounds that plaintiff was guilty of conduct unbecoming a member of the teaching profession. On appeal we affirm the trial court's Judgment and remand with direction that the plaintiff be reinstated as a teacher with back pay from the time the appeal to Chancery Court ended.

A Shelby County jury convicted the defendant, Telly Savalas Johnson, of five counts of criminal attempt to commit first degree murder. The trial court sentenced him as a Range I standard offender to an effective sentence of seventy-five years in the Tennessee Department of Correction. On appeal, the defendant argues that the evidence at trial was insufficient to prove identity and premeditation. Following our review, we affirm the judgments of the trial court.

The defendant, Deshawn Gail Leiger, appeals from the revocation of her community corrections sentence, claiming that the trial court erred by ordering that she serve her sentence in confinement. Discerning no error, we affirm.

This appeal concerns the return of seized property. In the course of a criminal investigation, the respondents seized personal property from the petitioner. After a year passed with no forfeiture proceeding, the petitioner filed a petition for the return of his seized property, pursuant to Tennessee Code Annotated _ 39-11-709. The respondents filed a motion to dismiss or for summary judgment, asserting that they no longer had possession of the property. The trial court granted the motion. The petitioner now appeals. We reverse and remand, finding that the petition was correctly filed in the county in which the property was seized, that it correctly named as the respondents the parties who seized the property, and that the respondents were not entitled to dismissal of the petition on the basis that the respondents had transferred possession of the property.

The Defendant, David Lynn Harrison, appeals from his conviction by a jury in the Knox County Criminal Court for theft of property valued at $1,000 or more, a Class D felony, for which he was sentenced as a Range I, standard offender to three years in the Department of Correction. The defendant contends (1) that the evidence is insufficient to support his conviction, (2) that the trial court erred when it failed to instruct the jury on the lesser included offenses of unauthorized use of a vehicle and attempted theft, and (3) that the trial court committed plain error when it failed to instruct the jury on the defenses of duress and necessity. Because the trial court erred in failing to instruct the jury on the lesser included offense of unauthorized use of a vehicle, we reverse the judgment of the trial court and remand the case for a new trial.

Employee alleged that he sustained hearing loss as a result of his work for employer. He filed a civil action 94 days after an impasse was reached at a benefit review conference. The trial court granted employer’s motion to dismiss on the basis of the 90-day statute of limitations, Tenn. Code Ann. § 50-6-203(g)(1) (2008). On appeal, employee contends that the report of the benefit review conference was never “filed with the commissioner” of Labor and Workforce Development as required by the statute and that the 90-day limitation period therefore never began to run. We affirm the judgment.

The Defendant, Joshua Bryant McClain, pleaded guilty to vandalism of cemetery monuments in an amount over $10,000. After a sentencing hearing, the trial court denied the defendant's request for judicial diversion and sentenced the defendant to five years; after the service of 150 days in jail, his sentence was to be suspended for a six-year period. The trial court also ordered the defendant to pay $5,000 in restitution to the cemetery association. The defendant now appeals, challenging the denial of judicial diversion, the length of his sentence, and the restitution award. After a review of the record, we affirm the judgment of the trial court.

This appeal involves a dispute between an employee and his employer regarding whether the employer agreed to pay off the employee's student loans as part of his employment compensation package. Following a bench trial, the trial court found that no valid contract existed, and it dismissed the employee's complaint. The employee appeals. We affirm.

Claiborne Hauling, LLC, contracted with Wisteria Park, LLC, to perform the excavating and grading, including installation of storm sewers and sanitary sewers, for a residential subdivision Wisteria was developing. The contract calls for Claiborne Hauling to commence work on November 6, 2006, with a substantial completion date of April 5, 2007. The contract further provides that Claiborne Hauling will receive a bonus of $500 per day for early completion but will pay a $500 per day "penalty" if completion extends past May 31, 2007. Claiborne did not finish by May 31, 2007. Wisteria "fired" Claiborne Hauling during a heated exchange in August 2007, and confirmed termination of the contract in a letter from counsel. The ground stated for termination is failure to complete the project by May 31, 2007. However, Wisteria did not secure approval of its plans for construction of the sewer system until June 8, 2007. When Wisteria did not pay the invoices and change orders outstanding at the time of the termination, Claiborne Hauling first sent a "prompt pay notice" and then filed this action alleging breach of contract against Wisteria. Wisteria answered and filed a counterclaim asserting, among other things, that it was entitled to recover $500 per day from May 31, 2007, until substantial completion, as liquidated damages. After a bench trial, the court found that Wisteria was guilty of the first material breach and awarded Claiborne Hauling a judgment in the amount of $301,430.62, which included attorney fees under the Prompt Pay Act, Tenn. Code Ann. _ 66-34-602 (2004). Wisteria appeals. We affirm.

This is a medical malpractice case involving res ipsa loquitur. The defendant physician performed surgery on the plaintiff's husband. Sponges were used in the patient's abdomen during the procedure. Nurses in the operating room counted the sponges used in the surgery. The nurses erred in counting the sponges, and the defendant physician closed the surgical incision with a sponge remaining inside. The retained sponge was later discovered and removed in a second surgery. The plaintiff's husband subsequently died of causes unrelated to the retained sponge. The widow sued the physician and his employer for medical malpractice, asserting that the doctrine of res ipsa loquitur applied, as well as the common knowledge exception to the requirement of expert medical proof. The physician filed a motion for summary judgment, and the plaintiff filed a cross-motion for summary judgment as to liability. The defendant physician filed two medical expert affidavits, both of which stated that the defendant physician had complied with the applicable standard of care by relying on the nurses' sponge count. Initially, the plaintiff filed an expert affidavit stating that the defendant physician did not comply with the applicable standard of care, but later filed a notice stating that she intended to proceed to trial with no expert proof to support her medical malpractice claim. The trial court determined that neither res ipsa loquitur nor the common knowledge exception applied, and granted summary judgment in favor of the defendant physician. The plaintiff now appeals. We reverse the grant of summary judgment in favor of the defendant physician, and affirm the denial of the plaintiff's motion for partial summary judgment. We find that, under both the common knowledge exception and the doctrine of res ipsa loquitur, the plaintiff was not required to submit expert proof to rebut the physician's expert testimony that he was not negligent by relying on the nurses' sponge count. However, application of neither res ipsa loquitur nor the common knowledge exception results in a conclusive presumption of negligence by the defendant physician. Therefore, a fact issue as to the physician's negligence remains for trial.

Pursuant to Tennessee Supreme Court Rule 51, this workers’ compensation appeal has been referred to the Special Workers’ Compensation Appeals Panel for a hearing and a report of findings of fact and conclusions of law. The employee alleged that she sustained a repetitive motion injury to her chest and back. Her employer denied liability. Three doctors testified concerning the issues of causation and permanency. The trial court found that the employee had sustained a compensable injury, and awarded 16% permanent partial disability (“PPD”) benefits to the body as a whole. On appeal, the employer contends that the trial court erred by awarding any benefits. The employee contends that the award is inadequate. We agree with the employee and increase the award to 30% PPD to the body as a whole and otherwise affirm the judgment of the trial court.

Petitioner Robert M. Linder was convicted of especially aggravated sexual exploitation of a minor following a bench trial in the Blount County Circuit Court. The trial court sentenced him to 12 years, and on appeal this Court modified his sentence to 11 years. He then filed a petition for post-conviction relief and, due to irreconcilable differences with his appointed counsel, has proceeded through the post-conviction process pro se. After an evidentiary hearing, the post-conviction court denied relief. Petitioner now appeals, alleging numerous errors in his conviction and subsequent appeals as well as ineffective assistance of trial, appellate, and post-conviction counsel. Although we conclude that the trial court enhanced Petitioner's sentence in violation of the rule announced in Blakely v. Washington, 542 U.S. 296 (2004), that violation was harmless beyond a reasonable doubt. Therefore, it does not provide the basis for an ineffective assistance of counsel claim. Similarly, none of Petitioner's other claims afford a basis for post-conviction relief. Consequently, we affirm the judgment of the post-conviction court.

This is an appeal from the dismissal of an inmate's petition for common law writ of certiorari. The petition alleged, inter alia, that the Tennessee Board of Probation and Parole arbitrarily and illegally denied the inmate's request for parole. The Board filed a motion to dismiss the petition pursuant to Rule 12.02(6) of the Tennessee Rules of Civil Procedure. Rather than issue the writ and order the filing of the certified record, the trial court dismissed the petition for failure to state a claim upon which relief could be granted. The inmate appealed. We affirm.