APPELLATE COURT OPINIONS

As this action was pleaded and tried, it was (1) a claim by Nancy Gates (“the plaintiff”) seeking to be declared the owner of a life estate in a tract of property; and, as a consequence of her estate, seeking the removal of Katie Williams (“the defendant”), the widow of the plaintiff’s son, Tony, from the property; and (2) a counterclaim by the defendant alleging that she had become the owner of an interest in the property by adverse possession due to her having lived on the property since the late 1960s or early 1970s. The trial court held that, as to these claims, neither party was entitled to relief against the other. The court found, however, that the plaintiff did, in fact, have a life estate in the subject property, and that the defendant had not proven adverse possession because her entry onto the property was with the plaintiff’s permission. The court then held, sua sponte, that the defendant had a license in the property coupled with an interest therein that had been acquired by building numerous structures on the property with the plaintiff’s knowledge and that it would not be equitable to require the defendant to move. The plaintiff appeals. We affirm the trial court’s judgment in part and reverse in part and remand for a hearing on the issue of what it would take to do equity given the facts of this case.

Charles Pesce (“the Owner”) is a practicing dentist. He contracted with East Tennessee Construction Services, Inc. (“the Builder”) to build him a new office for his practice on a lot owned by him. The Builder constructed the building, but with numerous undisputed defects. The Owner filed this action which culminated in a bench trial that lasted several days. Based upon diminution in value, the trial court awarded the Owner $282,000 in damages. The trial court expressly found that the cost to repair the structure was an unacceptable measure of damages because it “is disproportionate . . . to the difference in the value of the structure actually constructed and the one contracted for.” The court awarded the Owner discretionary costs of over $10,000. The Owner appeals challenging the measure of damages as well as the amount awarded under the diminution in value measure. The Owner also challenges the trial court’s failure to order the Builder to reimburse him for fees charged by one of the Owner’s experts in connection with his discovery deposition taken by the Builder. The Builder challenges the award of discretionary costs and argues that the damages awarded are excessive. We reverse in part and affirm the remaining judgment as modified.

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. Sarah Louise Bean (“Employee”) sustained bilateral shoulder injuries in the course and scope of her employment with Tepro, Inc. (“Employer”). After undergoing surgery on both shoulders, she was released to return to work. Employer was facing  reduced work volume at this time, and Employee worked only one day over the course of the next two months. She worked sporadically during the next four months and then was laid off indefinitely due to economic conditions. During the layoff, she applied for and received Social Security disability benefits. When she was called back to work after four months of layoff, she declined to return. At trial, the trial judge heard proof regarding the extent of Employee’s permanent physical impairment from Employee’s evaluating physician, Employee’s treating physician, and a Medical Impairment Registry (“MIR”) physician. After the conclusion of the proof, the trial court determined that Employee had sustained a permanent physical impairment of 19% to the body as a whole, that the impairment rating assigned by the MIR physician was rebutted by clear and convincing evidence, that the Employee was subject to the cap imposed by Tennessee Code Annotated section 50-6-241(d)(1)(A), and that she was entitled to an award of 28% permanent partial disability (“PPD”) benefits. Both parties challenge the trial court’s decision. After review, we modify the award of PPD to 21%, reduce the award of discretionary costs by $800, and affirm the remainder of the trial court’s judgment.

The trial court affirmed the Report of a special master interpreting the parties’ Marital Dissolution Agreement as granting Wife a proportionate share of Husband’s retirement based on the duration of the marriage and not based upon the thirty years he was in the military. We affirm.

Given the record presented to us on appeal, I concur fully in the majority’s Opinion. I write separately, however, to express my concern as to the diminution in value damages of $382,000 awarded to the Owner. I agree with the majority that, given the record presented to us, this result is correct. I also agree with the majority that the Owner is “in possession of a fully operational, profitable, dental office...” which the Owner had used for several years by the time of trial. As stated by the majority, the Owner incurred “construction cost of approximately $460,000...” in constructing this building. The diminution in value award of $382,000, with which I concur given the record  presented to us, means that the owner will end up with construction costs of only approximately $78,000 for “a fully operational, profitable, dental office.”

Petitioner, Jarret Alan Guy, appeals the dismissal of his petition for post-conviction relief in which he alleged that his trial counsel rendered ineffective assistance of counsel. Specifically, Petitioner contends that (1) counsel failed to file a motion to suppress his statement because Petitioner and is family were threatened by a police detective; and that (2) counsel failed to file a motion to suppress his statement based on Petitioner’s alleged intoxication at the time of the interview. After a thorough review of the record, we conclude that Petitioner has failed to show that his trial counsel rendered ineffective assistance of counsel and affirm the judgment of the post-conviction court.

This appeal involves post-divorce modification of child support. After a prior appeal, the case was remanded to the trial court to determine whether the father was entitled to a reduction in his child support obligation when one of the parties’ children reached majority. On remand, the trial court declined to reduce the father’s child support. The father appeals. We affirm.

The Defendant, Joann Williamson, pled guilty to facilitation of the manufacture of methamphetamine, a Class C felony, and two counts of child abuse and neglect, a Class D felony. See T.C.A. § 39-17-417 (2010); T.C.A. § 39-15-401 (Supp. 2008) (amended 2009). She was sentenced as a Range I, standard offender to six months’ incarceration and three years, six months’ probation for the facilitation conviction and four years’ probation for each of the child abuse convictions, to be served consecutively to the facilitation conviction for an effective twelve-year sentence. The Defendant’s plea agreement reserved a certified question of law regarding the legality of the warrantless search of her home. The Defendant contends that the trial court erred in denying her motion to suppress evidence and that the State should not be allowed to rely on more than one exception to the warrant requirement. The State contends that the Defendant did not properly reserve the certified question. We hold that the Defendant’s certified question was not properly reserved. The appeal is dismissed.

The trial court dismissed the City’s request for injunctive relief to enforce a permit revocation on the common law grounds of prior suit pending based on a pending certiorari action challenging the revocation. Because an original action for injunctive relief cannot be joined with a certiorari action that is appellate in nature, the rule of prior suit pending does not apply. Accordingly, we reverse the trial court.

Petitioner, Antonio D. Richardson, appeals from the trial court’s order denying his petition for post-conviction relief. Petitioner asserts that his counsel provided constitutionally ineffective assistance. After a thorough review, we affirm the judgment of the post-conviction court.

Petitioner, Timothy D. McGlory, was convicted following the entry of his guilty pleas to attempted second degree murder and possession of a Schedule I drug for resale. Pursuant to the plea agreement, Petitioner was sentenced to 12 years for his attempted second degree murder conviction and eight years for the drug offense, and his sentences were ordered to be served concurrently, for an effective sentence of 12 years. Petitioner now appeals from the post-conviction court’s dismissal of his petition for post-conviction relief, in which he alleged that his guilty pleas were involuntarily entered; that the prosecution failed to disclose evidence favorable to Petitioner; and that he was denied the effective assistance of counsel. After a careful review of the record, we conclude that Petitioner is not entitled to relief and affirm the judgment of the post-conviction court.

This is a breach of employment contract action filed by Dean G. Hafemen (“the Employee”) against Protein Discovery, Inc., a Tennessee corporation (“the Employer” or “the Company”) after the Employer terminated the Employee’s employment before the expiration of the term of his “Amended and Restated Employment Agreement” (“the Agreement”). The complaint alleges that the Employee is entitled to certain severance benefits provided for in the Agreement for any termination that does not qualify as a “Termination For Cause” as defined in the Agreement. After a bench trial, the court found that the termination was for cause and entered judgment in favor of the Employer. The Employee appeals. We reverse.

This is the second appeal of this case, which arises from the grant of a writ of certiorari by the Shelby County Chancery Court. Upon review of the Memphis City Council's record, the trial court found that the Appellee City had not acted arbitrarily, capriciously, or illegally in either approving a planned development, or in approving the companion street closure. The trial court granted partial summary judgment in favor of the City, thereby affirming the City Council’s action in approving the planned development. The issue of the companion street closure proceeded to hearing, with the trial court ultimately affirming the City Council’s decision. Appellant appeals, arguing that the City Council’s decision was made in violation of the Memphis City Charter and ordinances, and that the decision was the product of corruption within the City Council. Discerning no error, we affirm the action of the trial court and remand for further proceedings.

The Defendant, Joseph John Borger, pled guilty to multiple offenses stemming from his driving while intoxicated, and the trial court sentenced him as a Range II Offender to an effective sentence of seven years. On appeal, the Defendant contends that his sentence is excessive. After a thorough review of the record and applicable authorities, we affirm the judgments of the trial court.

Plaintiff requested records from a nonprofit foundation pursuant to the Tennessee Public Records Act. The nonprofit foundation refused the request, stating that the foundation was not a government agency and that the records were not public. Plaintiff filed a Petition for Access to Public Records in chancery court, which held that the records were available because the  nonprofit foundation was the functional equivalent of a government agency. The Court of Appeals affirmed. We hold that the nonprofit foundation’s records are not available pursuant to the Tennessee Public Records Act because it is not the functional equivalent of a government agency. We also hold that its records are not available pursuant to Tennessee Code Annotated section 10-7-503(d) (1999) because the nonprofit foundation has no more than two full-time staff members. We therefore reverse the judgment of the lower courts and dismiss the case.

This is a dependent and neglected case concerning Nirvanna S. (“the Child”), the minor child of Heather S. (“Mother”) and Mark S. (“Father”). Following the death of the Child’s infant sister, the Department of Children’s Services (“DCS”) filed a petition in juvenile court alleging that, in the care of Mother and Father, the Child was dependent, neglected and severely abused. The juvenile court held an adjudicatory hearing and determined that the Child was dependent and neglected – but not severely abused – by her parents. The juvenile court awarded temporary custody of the Child to DCS and charged the department with undertaking reasonable efforts toward reunifying the Child with Mother and Father. DCS appealed the order to the trial court. Following a bench trial, the court found that both parents had committed severe abuse against the Child’s sister pursuant to Tenn. Code Ann. § 37-1-102(b)(23)(A) and that the Child was dependent and neglected and “severely abused” within the meaning of the law. The court ordered DCS to retain custody of the Child; it relieved DCS of its obligation to work toward reunifying the Child with Mother and  Father. Mother appeals. Following our review, we modify that part of the trial court’s opinion finding that the Child was “severely abused.” In all other respects, the judgment is affirmed.

A patron of a tanning salon and her husband filed this action seeking to recover damages for injuries the patron sustained when the lid of a tanning bed fell on her head as she was attempting to exit the tanning bed. The plaintiffs allege that the owner and operator of the tanning salon acted negligently by failing to properly maintain or inspect the tanning bed she used, which caused the lid of the tanning bed to become too heavy for the patron to lift and safely exit, and by failing to have a way for a patron to call for help from within the tanning room in the event of an emergency. The trial court summarily dismissed the complaint finding, inter alia, the plaintiffs cannot demonstrate essential elements of a prima facie case, specifically that a defective condition existed or that the defendants had actual or constructive notice of any alleged defective or dangerous condition of the premises. We affirm.

The sellers of a mobile home park appeal the trial court’s decision to rescind two real estate sales contracts and refund the purchasers their down payment. The purchasers asserted claims for fraudulent misrepresentation, fraud in the inducement, and breach of fiduciary duty, all of which arose from alleged misrepresentations by the sellers regarding the condition and income potential of the property at issue. Following a lengthy and convoluted procedural history, including a jury trial, the granting of a new trial, and several waves of amended pleadings, the parties filed competing motions for summary judgment. The sellers asserted various defenses including, inter alia, that the purchasers’ claims were time barred. Finding that the sellers fraudulently induced the purchasers into buying the property, and that the statute of limitations had been tolled due to the sellers’ concealment of material facts, the trial court denied the sellers’ motion, granted summary judgment to the purchasers. For relief, the trial court rescinded the sales contracts and awarded the purchasers a refund of their down payments. We affirm.

Employee sustained a compensable injury to her lower back. Employer initially provided medical treatment, but Employer’s insurer subsequently declined to provide additional medical treatment. Employee sought treatment on her own. Her treating physician found that she retained a 15% permanent impairment as a result of her injury. An examining physician for Employer opined that she had no impairment. A physician was selected through the Medical Impairment Registry (“MIR”) process. That physician also stated that Employee had no permanent impairment. The trial court found that Employee rebutted the presumption of correctness of the MIR physician’s rating by clear and convincing evidence pursuant to Tennessee Code Annotated section 50-6-204(d)(5) and awarded 20% permanent partial disability. Both sides appealed. We affirm the judgment of the trial court.

The Petitioner, Jason Lee White, appeals from the order of the trial court dismissing his “Motion to Correct Illegal Sentence.” The State has filed a motion requesting that this Court affirm the judgment of the trial court pursuant to Rule 20 of the Rules of the Court of  Criminal Appeals. We grant the State’s motion and affirm the judgment of the trial court.

In this workers’ compensation action, the employee, Timothy Ruskin, worked as a maintenance technician for Ledic Realty Services, Ltd. (Ledic), which managed several apartment buildings. Mr. Ruskin was injured while responding to an after-hours call from a tenant of one of the apartment buildings. In response to his compensation claim, Ledic asserted as an affirmative defense that Mr. Ruskin’s injuries resulted from his intoxication. After a hearing, the trial court ruled in Ledic’s favor, and Mr. Ruskin appealed. We affirm the judgment of the trial court.

The State of Tennessee, on behalf of Kenneth S. L. (“Father”), filed a petition for child support against Melissa G. M. (“Mother”). The hearing for child support was continued on three separate occasions. With each continuance, the trial court instructed Mother to bring medical  documentation verifying her inability to work. At the fourth scheduled hearing, Mother failed to produce documentation from her medical providers. The trial court proceeded to set monthly child support payments and imputed a gross income of minimum wage to Mother. Mother appeals. We affirm.

A divorced mother of two children filed a petition for child support, alleging that although the father had legal custody of the children and she had been under an order to pay child support to him, the children had actually resided with her for the past six years. The father did not deny that the children had been living with the mother during that entire period. After negotiation, the parties entered into an agreed order, whereby the father was to pay $35,000 in back child support to his former wife. Twenty-three months later, the father filed a Rule 60.02 motion for relief, contending that the agreed order was void as against public policy because it amounted to an impermissible retroactive modification of child support. The trial court denied the father’s motion on the ground that it was entitled to presume that parties who are represented by counsel and who submit a signed agreement to the court have taken every pertinent factor into consideration. We affirm.

John Jay Hooker has filed a motion requesting this Court (1) to set aside its June 21, 2010 order directing the Clerk of the Appellate Courts to decline to accept any of his further filings in this case and (2) to rescind its January 7, 2010 order enforcing the October 20, 2008 order of the Chancery Court for Davidson County suspending his license to practice law for thirty days. Mr. Hooker has also requested that all the members of the Court recuse themselves from this proceeding because they “are prejudiced against him as a consequence of a contentious political dispute before the legislature . . . regarding the [c]onstitutionality of the [r]etention [e]lection [s]tatute.” In order to address Mr. Hooker’s first two requests, the Court must first address his renewed insistence that all the members of this Court are disqualified from any proceedings involving his law license. It is, therefore, ordered that the Clerk of the Appellate Courts is directed to accept and file the motion lodged by Mr. Hooker on January 14, 2011. It is further ordered that Mr. Hooker’s  motion requesting all the members of this Court to recuse themselves from this proceeding is  denied.

The appellant, Karim El-Amin, pled guilty in the Washington County Criminal Court to two counts of fraudulent use of a credit card involving a value more than five hundred dollars but less than one thousand dollars, a Class E felony, and one count of fraudulent use of a credit card involving a value equal to or less than five hundred dollars, a Class A misdemeanor. Pursuant to the plea agreement, the appellant was to receive an effective four-year sentence with the manner of service to be determined by the trial court. On appeal, the appellant challenges the trial court’s denial of his request of alternative sentencing. Based upon the record and the parties’ briefs, we affirm the judgment of the trial court.