APPELLATE COURT OPINIONS

This is an action to enforce a Declaration of Covenants, Conditions and Restrictions for a subdivision. The trial court found the defendant homeowners erected a fence without having obtained proper approval from the Architectural Control Committee, that the fence was in violation of restrictive covenants, and that the fence must be removed. We have determined the evidence does not preponderate against the trial court's findings that defendants failed to obtain the necessary approval to construct the fence and that the fence is in violation of restrictive covenants; thus, we affirm.

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 a compensable injury to his right shoulder and a compensable mental injury. His employer denied that the alleged mental injury was compensable. The trial court found both injuries to be compensable and awarded 50% permanent partial disability to the body as a whole. On appeal, the employer contends that the trial court erred by awarding benefits for the mental injury and by finding that the employee did not have a meaningful return to work. The employee contends that the trial court erred by accepting the impairment rating of the Medical Impairment Rating Registry physician and in the trial court’s application of the concurrent injury rule. We conclude that the evidence preponderates against the trial court’s finding that the employee sustained a compensable mental injury and modify the judgment accordingly.

I concur in the result, but I respectfully disagree with the conclusion that the petitioner is presumed to have the same knowledge as his attorney regarding the photograph and the timing of its discovery. I do not believe that such a presumption applies to all facts that an attorney uncovers during representation.

In April 2004, Appellant, David L. Baker, pled guilty in Jackson County to one count of aggravated assault. Pursuant to the plea agreement, appellant was ordered to serve four years on probation. Appellant's probation officer filed a probation violation warrant alleging that appellant had violated Rules 1 and 4 of the probation order. Following a hearing, the trial court revoked appellant's probation based upon a violation of Rule 10 of the probation order. Appellant appealed to this Court arguing that his right to due process had been violated because he did not receive sufficient notice of the Rule 10 violation to support the revocation of his probation. We have reviewed the record on appeal and must agree with appellant. The trial court based the revocation upon a violation which was not alleged in the probation violation warrant and appellant had neither written nor actual notice of the allegation of this violation. Therefore, we reverse the revocation of appellant's probation and remand for further proceedings in accordance with this opinion.

The petitioner, Jimmy Gray, stands convicted of four counts of aggravated rape and is serving a sentence of eighty years in the Tennessee Department of Correction. On September 14, 2009, the petitioner filed a petition for writ of error coram nobis on the basis of newly discovered evidence. The trial court summarily dismissed the petition as filed outside the statute of limitations. On appeal, the petitioner claims that (1) due process requires tolling of the statute of limitations; (2) he filed his petition within one year of discovering new evidence; and (3) the trial court erred by summarily dismissing his petition. Following our review of the parties' briefs, the record on appeal, and the applicable law, we affirm the judgment of the trial court.

Defendant, Norman Eugene Banks, was indicted for initiation of a process intended to result in the manufacture of methamphetamine, a Class B felony, in count one of the indictment, and possession of drug paraphernalia, a Class A misdemeanor, in count two. Following a bench trial, the trial court as trier of fact found defendant guilty of the lesser included offense of attempt to initiate of a process intended to result in the manufacture of methamphetamine, a Class C felony, and possession of drug paraphernalia. The trial court sentenced defendant as a Range II, multiple offender, to eight years for his Class C felony conviction and eleven months, twenty-nine days for his misdemeanor conviction, to be served concurrently for an effective sentence of eight years. On appeal, defendant argues that (1) the trial court erred in denying his motion to dismiss the indictment based on his assertion that the language in Tennessee Code Annotated section 39-17-435 is unconstitutionally vague and overbroad; (2) the statutory presumption created in Tennessee Code Annotated section 39-17-435 is unconstitutional; (3) the offense of attempt to initiate a process intended to result in the manufacture of methamphetamine is not a recognizable offense in Tennessee; and (4) the evidence is insufficient to support defendant's conviction of possession of drug paraphernalia. After a thorough review, we affirm the judgments of the trial court.

The defendant, James Edgar Leverette, stands convicted of theft of property over $500, a Class E felony. The trial court sentenced him as a career offender to six years in the Tennessee Department of Correction. On appeal, the defendant challenges the sufficiency of the evidence, arguing that the value of the property was under $500. Following our review, we affirm the judgment of the trial court.

This is a medical malpractice case. The jury returned a verdict, finding that the Appellee/Doctor deviated from the standard of care, but that his deviation was not the legal cause of the injury. Appellant contends that the trial court erred in denying her motion for a directed verdict, erred in ruling on her objections to Appellee's experts and the impeachment of her experts, that she was prejudiced by the language used on the verdict form, and that the trial court abused its discretion in allowing Appellee to make a powerpoint presentation during opening statements and closing arguments. Finding no error, we affirm.

This appeal involves the termination of parental rights with regard to a child, Nathan T., who came into protective custody of the Department of Children's Services ("DCS") on November 7, 2006. DCS initiated a proceeding to secure temporary custody of Nathan following receipt of a referral that he had been left by his mother, Megan T., ("Mother") with two elderly women in a house with no heat and where the women were using drugs; This Court has a policy of protecting the identity of children in parental termination cases by initializing their last name. could not be found.2 By order entered January 24, 2007, Nathan was adjudicated dependent and neglected and custody awarded to DCS; he was subsequently placed in a foster home, where he has remained throughout these proceedings.

A Knox County jury convicted the defendant, Paul Wallace Dinwiddie, Jr., of two counts of aggravated rape and two counts of aggravated sexual battery. The defendant appeals, alleging that the trial court erred by instructing the jury on flight and by allowing a nurse practitioner to testify as an expert witness. The defendant also challenges the sufficiency of the convicting evidence and the length of his sentences. Upon our review, we find no error in the convictions; however, we remand to the trial court to merge the two aggravated sexual battery jury verdicts into one conviction judgment and the two aggravated rape jury verdicts into one conviction judgment.

A Davidson County Grand Jury returned an indictment against Defendant, Sedric Holt, for nine counts of aggravated robbery. Defendant subsequently pled guilty to five counts of robbery, all Class C felonies. The trial court sentenced defendant as a Range I, standard offender, to five years each in counts two, three, seven, and eight, and four years in count four. Counts two and three were ordered to be served concurrently with each other and consecutively to count four. Counts seven and eight were ordered to be served concurrently with each other and consecutively to counts two, three, and four for an effective fourteen year sentence in the Department of Correction. On appeal, defendant argues that his sentence is excessive and that he should have been granted an alternative sentence. After a thorough review, we affirm the judgments of the trial court.

I agree with the majority’s decision to affirm the trial court’s judgment entered on the jury’s verdict. I also agree with the majority’s conclusion that Mr. Horner’s attempt to tell the jury what the “personal representatives of the International Code Council” told him is an effort to give the jury hearsay testimony. Finally, I agree that, assuming the trial court was incorrect in sustaining the plaintiff’s objection to the subject testimony, the error was nevertheless harmless. My departure from the majority opinion is with respect to the majority’s conclusion that the trial court erred when it sustained the plaintiff’s objection. In my judgment, the proffered testimony was not only hearsay, it was hearsay that does not fit within any exception to the hearsay rule. I believe the trial court was correct in sustaining the objection

Father of child appeals the trial court's denial of his motion to continue hearing to terminate his parental rights and subsequent termination of his rights on the grounds of abandonment and failure to establish/exercise paternity. Finding that the court erred not recessing the hearing to allow Father to be present at the termination hearing, we vacate the judgment terminating Father's parental rights and remand for further proceedings.

The defendant, Theresa W. Robinson, was indicted for soliciting unlawful compensation, misuse of official information, and official misconduct. She applied for pretrial diversion, and the district attorney general denied her request. After granting her petition for a writ of certiorari, the trial court ruled that the district attorney general abused his discretion in denying pretrial diversion. The State appealed. Following our review, we conclude that we are without jurisdiction because the State cannot appeal the trial court's decision to grant pretrial diversion under Tennessee Rule of Appellate Procedure 3 and we decline review under Tennessee Rule of Appellate Procedure 10. Accordingly, the State's appeal is dismissed.

Plaintiff sustained personal injuries resulting from a fall on defendant's premises and brought this action for damages, which resulted in a jury verdict in favor of plaintiff for damages against defendant. Defendant appealed, and asserted that the trial judge erred when he refused to allow defendant's expert to testify to his conversation with a third party. On appeal, we hold that the trial court erred in refusing to allow the proffered testimony, but the error was harmless. We affirm the Judgment of the trial court.

The Petitioner, Adam Wester, appeals the Anderson County Criminal Court's denial of postconviction relief from his conviction for felony murder in the perpetration of aggravated child abuse, for which he received life imprisonment. The defendant contends that trial counsel was ineffective in failing to suppress the petitioner's written statements to law enforcement and in failing to challenge the State's expert regarding the cause of the victim's injuries. We affirm the judgment of the trial court.

I respectfully disagree with the majority’s conclusion that the trial court erred by denying Father’s request for a continuance and proceeding with the trial on the petition to terminate his parental rights. I reach my decision based on two factors: (1) the decision to grant a continuance or to proceed with the trial was within the discretion of the trial court, a decision that will be upheld so long as reasonable minds can disagree as to the propriety of the decision made; and (2) the fact that Father was arrested three weeks prior to trial and knew he would be unable to attend, yet he did not inform his attorney until the night before trial.
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Petitioner, Grady Wayne Mealer, appeals the dismissal of his petition for post-conviction relief in which he alleged that he received ineffective assistance of counsel because he was denied the right to testify at trial. 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.

Party A obtained a default judgment in general sessions court against Party B. The general sessions court subsequently granted Party B's motion to set aside the default judgment. Party A appealed to circuit court. The circuit court reversed the general sessions court's decision to set aside the default judgment. Party B appeals to this court. We affirm the decision of the circuit court.

Plaintiff brought this action, charging defendant utility breached its contract with plaintiff to construct a line and deliver electricity to his property. Defendant filed a Motion for Summary Judgment and the trial judge held that there was no meeting of the minds between the parties and defendant was not obligated to construct a line to deliver electricity to plaintiff's dwelling. On appeal, we affirm.

This is a medical malpractice case. The jury returned a verdict, finding that the Appellee/Doctor deviated from the standard of care, but that his deviation was not the legal cause of the injury. Appellant contends that the trial court erred in denying her motion for a directed verdict, erred in ruling on her objections to Appellee's experts and the impeachment of her experts, that she was prejudiced by the language used on the verdict form, and that the trial court abused its discretion in allowing Appellee to make a powerpoint presentation during opening statements and closing arguments. Finding no error, we affirm.

Following a jury trial, Defendant, Tracy Thomas Hepburn, was convicted of twenty-four counts of burglary, a Class D felony, three counts of attempted burglary, a Class E felony, fourteen counts of misdemeanor vandalism, six counts of vandalism, a Class E felony, two counts of vandalism, a Class D felony, ten counts of misdemeanor theft, one count of theft, a Class E felony, and two counts of theft, a Class D felony, in case nos. 02-0844, 02-0875, 02-0876, 02-0888, and 02-0291. The trial court sentenced Defendant as a Range III, persistent offender, to ten years for each Class D felony conviction, five years for each Class E felony conviction, and eleven months, twenty-nine days for each Class A misdemeanor conviction. The trial court imposed a combination of concurrent and consecutive sentencing for an effective sentence of one hundred years. On appeal, Defendant argues that the trial court erred in denying his motion to suppress and in imposing consecutive sentencing. After a thorough review, we affirm the judgments of the trial court.

Petitioner, Duane Michael Coleman, appeals the dismissal of his petition for post-conviction relief. The Petitioner filed his petition outside the statute of limitations. Accordingly, the judgment of the post-conviction court is affirmed.

The Defendant, Daniel Leon McCaig, appeals from the order of Dyer County Circuit Court revoking his probation. In May 2007, the Defendant pleaded guilty to attempted sexual battery and received a five-year sentence. He was placed on probation. Thereafter, on July 22, 2008, he pleaded guilty to a violation of the sex offender registry law and theft under $500. He was sentenced to an effective sentence of two years for these new convictions, said sentence to be suspended and served on probation. This new sentence was to be served consecutively to the five-year sentence, resulting in an effective seven-year sentence on probation. Subsequently, a violation warrant was issued, wherein it was alleged that the Defendant violated the conditions of his probation. The violation report was later amended. Following a hearing, the trial court revoked the Defendant's probationary sentence and ordered that his original seven-year sentence to the Department of Correction be reinstated. On appeal, the Defendant argues that the evidence does not support full revocation of his probation. After a review of the record, we conclude that the trial court did not abuse its discretion by revoking the Defendant's probation. The judgment of the trial court is affirmed.