APPELLATE COURT OPINIONS

This workers’ compensation appeal has been referred to the Special Workers’ Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated section 50-6-225(e)(3) for a hearing and a report of findings of fact and conclusions of law. Employee alleged that she developed carpal tunnel syndrome as a result of her work as an aesthetician. She was referred to an orthopaedic surgeon, who concluded that her condition was not related to her employment. She had surgery on both arms. An evaluating physician testified that her condition was caused by her employment. The trial court ruled that she failed to sustain her burden of proof with regards to causation. On appeal, she contends that the evidence preponderates against that finding. We affirm the judgment.

The defendant, Timothy Ray Azbill, was convicted of aggravated burglary, rape of a child, and especially aggravated kidnapping. For his conviction of aggravated burglary, the defendant was sentenced as a Range II, multiple offender to eight years in the Tennessee Department of Correction. For his convictions of rape of a child and especially aggravated kidnapping, the defendant was sentenced as a Range I, violent offender to twenty-five years for each conviction. The court ordered that the sentences were to run concurrently but consecutively to the sentence on a prior conviction. On direct appeal, this court affirmed the defendant’s convictions, but determined that the trial court had erroneously begun at the midpoint of the statutory range and remanded the case for resentencing for rape of a child and especially aggravated kidnapping. On remand, the trial court again sentenced the defendant to twenty-five years for each conviction. On appeal, the defendant asserts that the trial court erred by failing to consider mitigating evidence offered by the defendant and summarily imposed the sentences. After a thorough review of the record and the parties’ briefs, the judgments of the trial court are affirmed.

Employee was a passenger in an automobile, which was involved in a collision. It is undisputed that the accident arose from and occurred in the course of his employment. The trial court awarded future medical benefits but declined to award permanent disability benefits. We affirm the judgment.1

After a trial by jury, the Petitioner, Jordan Hill, was convicted of criminal attempt: aggravated robbery and convicted felon in possession of a handgun by a Shelby County jury. He now appeals the denial of post-conviction relief claiming “[t]he post-conviction court erred when it denied the Appellant’s Petition for Post-Conviction Relief and effectively placed its imprimatur on trial counsel’s performance as effective although the proof irrefutably showed that trial counsel had not meaningfully conferred with the Defendant prior to trial[.]” Upon our review of the record, we affirm the judgment of the post-conviction court.

The petitioner, George Scott Mason, appeals the judgment of the Bedford County Circuit Court denying post-conviction relief. In this appeal, the petitioner argues that he received the ineffective assistance of counsel which caused him to enter an unknowing and involuntary guilty plea. After review, the judgment of the court denying post-conviction relief is affirmed.

Petitioner, Joe Ervin Hunter, pled guilty to possession of less than .5 gram of a controlled substance with intent to sell. In March 2008, Petitioner filed an application for a writ of habeas corpus which was summarily dismissed by the habeas corpus court. On appeal, he argues that the habeas corpus court erred in summarily dismissing his application. After a thorough review of the record, we conclude that Petitioner did not comply with the procedural requirements as set out by statute and that he did not base his plea for habeas corpus relief upon a cognizable claim. Therefore, we affirm the summary dismissal of his application.

Petitioner, Demorris Marcel Childress, pled guilty in Bedford County to two counts of possession of a Schedule II substance for resale, both Class B felonies, on two separate dates. Subsequently, Petitioner filed two petitions for post-conviction relief, in which he argued that he had ineffective assistance of counsel and that his guilty pleas were unknowing and involuntary. The post-conviction court dismissed the petitions after a hearing. We determine that Petitioner has failed to show that he received ineffective assistance of counsel or that his guilty pleas were entered involuntarily. Accordingly, the judgment of the post-conviction court is affirmed.

Respondent/Appellant appeals the trial court’s termination of her parental rights based on abandonment. We affirm.

The defendant, Danny Ray Anderson, pled guilty on January 31, 2008, to two counts of felony murder and was sentenced to two concurrent sentences of life without parole. On February 5, 2008, he filed a motion to withdraw his pleas of guilty based upon his claims that the pleas were the result of fear and misunderstanding and were not knowingly, understandingly, or voluntarily entered. After an evidentiary hearing, the trial court denied the motion. Following our review, we affirm the order of the trial court denying the motion to withdraw the pleas of guilty.

The parties to a nursing home Admission Agreement dispute the enforceability of its arbitration provision. The trial court refused to enforce the arbitration provision. The nursing home appealed. For the following reasons, we reverse the decision of the circuit court and remand for entry of an order compelling arbitration.

The pro se defendant, David A. Ferrell, was convicted of failure to display a license, violation of the seatbelt law, and two violations of the vehicle registration law. The convictions arose from two indictments separated by five months. He was sentenced to thirty days in the county jail for his first violation of the registration law and for failure to display a license and to twenty days for his second violation of the registration law. Additionally, a $20.00 fine was imposed for his seatbelt law violation. His sentences were ordered to run consecutively. On appeal, he argues that the trial court did not have jurisdiction over his cases. After careful review, we affirm the judgments from the trialcourt.

The defendant, Christopher Franklin, appeals from his Bedford County Circuit Court jury conviction
of filing a false report, a Class C felony. The trial court sentenced the defendant to six years’ incarceration as a Range II, persistent offender. In this appeal as of right, he argues that the evidence is insufficient to support his conviction. Following our review, we affirm the judgment of the trial court.

The Petitioner, Bruce A. Smiley, pled guilty in the Hamilton County Criminal Court to one count of rape of a child and one count of especially aggravated sexual exploitation of a minor. Pursuant to the plea agreement, he received a total effective sentence of twenty-three years. Subsequently, the Petitioner filed a petition for post-conviction relief, alleging that his trial counsel was ineffective and that his guilty pleas were not knowingly and voluntarily entered. The post-conviction court denied the petition, and the Petitioner appeals. Upon review, we affirm the judgment of the post-conviction court.

The defendant, Steven Watson, was convicted by a Shelby County jury of aggravated assault, a Class C felony, and sentenced to a term of six years. He was ordered to serve six months in the Shelby County Correctional Center, with the balance of his sentence on probation. The defendant was also ordered to pay $8800 in restitution to the victim. On appeal, the defendant has raised five issues for review: (1) whether the evidence is sufficient to support the conviction; (2) whether the trial court erred in allowing the defendant to be questioned regarding a sixteen-year-old prior conviction; (3) whether the court erred in its application and weighing of enhancing and mitigating factors; (4) whether the court erred in denying the defendant’s request for full probation; and (5) whether the court erred by ordering restitution in the amount of $8800 be paid to the victim without proof of his medical bills or lost wages. Because of an untimely filed motion for new trial, the defendant has waived review of his evidentiary issue regarding the prior conviction. After review, we conclude that the evidence is sufficient and that the sentence imposed, with regard to length and manner of service, is proper. With regard to the order of restitution, we conclude that, while the amount of restitution ordered was properly established, remand is necessary for a determination of the defendant’s ability to pay as required by statute. The judgment of conviction and sentence are affirmed in all other respects.

The petitioner, Reginald Almo, appeals pro se the dismissal of his petition for habeas corpus relief in the Lauderdale County Circuit Court from his conviction for second degree murder, a Class A felony. The petitioner alleged that: counsel provided ineffective assistance of counsel; his guilty plea was entered unknowingly and unintelligently; and he was sentenced outside of his range. The habeas corpus court determined that his claims of ineffective assistance of counsel were not cognizable claims for relief in a habeas corpus proceeding and that his sentencing issue had previously been determined. After careful review, we affirm the dismissal of the petition for habeas corpus relief.

Employee was injured when lifting a can of paint at work. Employee’s treating physicians
recommended surgery, but Employee refused surgical treatment. The trial court found that
Employee had sustained a 60% permanent partial disability (“PPD”). The court also found that the date of maximum medical improvement (“MMI”) was January 26, 2007, and that Employee was entitled to temporary total disability (“TTD”) until that date. Employer appealed, arguing that the trial court erred in its determination of the date of MMI and that the award of PPD is excessive. We conclude that the evidence does not preponderate against the trial court’s findings concerning the impairment rating and vocational disability. We reverse the trial court’s finding as to the date of maximum medical improvement.1

The defendant, Steven Watson, was convicted by a Shelby County jury of aggravated assault, a Class C felony, and sentenced to a term of six years. He was ordered to serve six months in the Shelby County Correctional Center, with the balance of his sentence on probation. The defendant was also ordered to pay $8800 in restitution to the victim. On appeal, the defendant has raised five issues for review: (1) whether the evidence is sufficient to support the conviction; (2) whether the trial court erred in allowing the defendant to be questioned regarding a sixteen-year-old prior conviction; (3) whether the court erred in its application and weighing of enhancing and mitigating factors; (4) whether the court erred in denying the defendant’s request for full probation; and (5) whether the court erred by ordering restitution in the amount of $8800 be paid to the victim without proof of his medical bills or lost wages. Because of an untimely filed motion for new trial, the defendant has waived review of his evidentiary issue regarding the prior conviction. After review, we conclude that the evidence is sufficient and that the sentence imposed, with regard to length and manner of service, is proper. With regard to the order of restitution, we conclude that, while the amount of restitution ordered was properly established, remand is necessary for a determination of thedefendant’s ability to pay as required by statute. The judgment of conviction and sentence are affirmed in all other respects.

Employee alleged that he sustained a compensable injury to his wrist. There was conflicting medical evidence concerning causation and impairment. The trial court ruled that Employee had sustained a compensable injury and assigned 10% permanent partial disability to the right arm. On appeal, Employer contends that the trial court erred by admitting the testimony of Employee’s medical expert and by finding that Employee sustained a compensable injury and permanent disability. We affirm the judgment.1

This appeal involves the trial court’s decision to modify an arbitrator’s award in a dispute concerning the parties’ parenting plan and their child support obligations. Appellant contends that the trial court erred because modification of the arbitrator’s award was not permissible under the Uniform Arbitration Act. We have reviewed the trial court’s order referring this dispute to the arbitrator and concluded that the Uniform Arbitration Act is inapplicable. Instead, we find that this was a nonbinding dispute resolution proceeding governed by Tennessee Supreme Court Rule 31. Accordingly, we affirm the trial court’s decision to modify the arbitrator’s award.

The petitioner, Elroy Gaines, appeals the Shelby County Criminal Court’s denial of his petition for post-conviction relief. Following a jury trial, he was convicted of aggravated sexual battery, a Class B felony, and was subsequently sentenced as a career offender to thirty years in the Department of Correction. On appeal, the petitioner argues that he was denied his right to the effective assistance of counsel based upon counsel’s failure to: (1) properly investigate the case and prepare for trial; (2) adequately communicate with the petitioner; and (3) properly preserve appellate issues. Following review of the record, the judgment of the post-conviction court is affirmed.

This appeal involves a court clerk’s fee for facilitating a foreclosure sale. The defendant bank held a foreclosure sale of the plaintiff’s home without giving the plaintiff proper notice. The plaintiff then filed this action and the sale was set aside. The trial court ordered that the property be re-auctioned and appointed the clerk and master of the chancery court as a special commissioner to facilitate the sale. At the second sale, the plaintiff purchased the property. The trial court ordered that the clerk be awarded 5% of the purchase price as his fee for services rendered in connection with the sale. The bank objected, arguing that the clerk’s fee was excessive. The trial court conducted a hearing and held that the fee to the clerk was reasonable. The bank appealed, naming the court clerk as an appellee in the notice of appeal, but failing to file a motion to add him as a party. The appeal was dismissed for lack of a final order.

The issue is who has authority and jurisdiction to establish terms and conditions of a defendant’s
lifetime community supervision imposed pursuant to Tennessee Code Annotated section 39-13-524. We conclude it is the Tennessee Board of Probation and Parole. Therefore, the trial court’s order in this case modifying the terms and conditions of the defendant’s lifetime community supervision is reversed.

Appellant, Charles David Smithson, was convicted by a Lawrence County jury of two counts of attempted first degree murder and one count of aggravated assault. Appellant was sentenced to an effective sentence of forty-five years as a result of his convictions. Appellant appeals his convictions for attempted first degree murder, arguing that the evidence did not show premeditation. Following a review of the record, we determine that the evidence introduced at trial was sufficient to establish that Appellant committed attempted first degree murder. As a result, the judgments of the trial court are affirmed.

In this divorce action, the Trial Court granted the parties a divorce and awarded the wife $1,000.00 per month alimony. The husband appealed the award of alimony. We hold the Trial Court did not abuse its discretion in awarding alimony.

This opinion replaces one filed on March 31, 2009, which opinion was withdrawn by us “and held for naught” by order of April 21, 2009. The joint complaint filed by the plaintiffs, Timmy Sykes and Curtis Greene, who are African-Americans, actually involves the independent claims of the two plaintiffs against their former employer, the Chattanooga Housing Authority (“the CHA” or “CHA”), and the plaintiffs’ supervisor in that employment, Jeff Hazelwood, Chief of the CHA’s Public Safety Department, for wrongful termination of their employment and other claims. Sykes, who was a CHA criminal investigator, was terminated by the CHA on September 30, 2004, and Greene, also a criminal investigator, was terminated on January 19, 2005. They each seek damages for wrongful termination, asserting two theories of recovery. Sykes also seeks damages from Chief Hazelwood for alleged defamatory statements made by him and both plaintiffs sue Hazelwood for interfering with their CHA employment. The defendants filed a motion for summary judgment which the trial court granted as to all claims. The plaintiffs appeal. They raise three issues in common and Sykes complains of the trial court’s judgment with respect to his defamation claim. We affirm in part and vacate in part.