APPELLATE COURT OPINIONS

In this workers’ compensation case, the employee, Tammie Haake, sustained compensable injuries which required her to have surgery on both wrists. After the first procedure, she was able to return to work, although with modified duties. While she was temporarily disabled from the second surgery, her employer, Saturn Corporation, offered its workers an early retirement incentive program. She accepted the offer, and, as a result, did not return to work. The trial court found that her retirement was reasonably related to her work injuries, and therefore did not apply the “cap” of one and one-half times impairment contained in Tennessee Code Annotated section 50-6-241(d)(1)(A) Employer has appealed from that decision. We affirm the judgment. 1

The petitioner, John Biaselli, pleaded guilty to one count of possession of a Schedule II controlled substance for resale and one count of possession of a Schedule II controlled substance for delivery, both Class B felonies. The trial court merged the two counts and sentenced the petitioner to eleven years in the Tennessee Department of Correction at thirty percent. The petitioner appealed his sentence to this court, which affirmed the trial court. The petitioner now appeals the judgment of the Bedford County Circuit Court denying post-conviction relief. The petitioner asserts that he

This case 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 court affirmed the Council’s action in approving a planned development and companion street closure. We conclude that the order appealed lacks finality due to the failure to comply with Tenn. R. Civ. P. 58. Consequently, we dismiss this appeal for lack of subject-matter jurisdiction.

This workers’ compensation appeal has been referred to the Special Workers’ Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated § 50-6-225(e)(3) for a hearing and a report of findings of fact and conclusions of law. The trial court found Employee to be permanently and totally disabled as a result of a compensable injury. It apportioned benefits 70% to Employer and 30% to the Second Injury Fund. Employer appealed. Employer and Employee then reached an agreement to compromise Employer’s portion of the claim for a lump sum payment. The appeal was voluntarily dismissed. Employee thereafter filed a motion requesting that the Fund  immediately commence paying its share of the judgment. The trial court granted that
motion. The Fund has appealed, contending that the order violates several provisions of the workers’ compensation law. We agree, reverse the order at issue, and remand the case to the trial court for further proceedings.

A Lauderdale County jury found the petitioner guilty of aggravated rape and aggravated kidnapping. The trial court sentenced the petitioner to an effective thirty-five year sentence in the Tennessee Department of Correction. The petitioner appealed his convictions to this court, which affirmed the convictions and sentence. The petitioner then sought post-conviction relief on the theory that he received ineffective assistance of counsel during the trial, inter alia. The post-conviction court dismissed the petition. The petitioner now appeals. Following our review of the record and the parties’ briefs, we affirm the judgment of the post-conviction court.

Wife appeals claiming trial court erred in finding her agreement to a Marital Dissolution Agreement and Parenting Plan was valid and not obtained under duress. Finding that wife later adopted the disputed Marital Dissolution Agreement and Parenting Plan with advice of counsel and without any allegation of duress, we find that wife waived her objection and, alternatively, that any dispute as to the validity of her agreement had been rendered moot by her later adoption of it.

The post-conviction court dismissed the petition, finding that the petition was time barred and that no due process consideration existed to toll the statute of limitations. After a thorough review of the record and the applicable law, we affirm the post-conviction court’s dismissal of the petition as time barred.

The petitioner, Keith Collins, pled guilty to possession of more than 0.5 grams of cocaine with the intent to sell, a Class C felony, and aggravated assault, a Class C felony. He was sentenced to concurrent sentences of three years on probation as a Range I, standard offender. His probation was later revoked, and a petition for post-conviction relief followed. On appeal, he argues  counsel was ineffective and that his guilty pleas were not knowingly and voluntarily entered. After careful review, we affirm the judgment from the post-conviction court.

Father challenges the trial court’s termination of his parental rights on the grounds of abandonment by failing to visit and by engaging in conduct exhibiting a wanton disregard for the child’s welfare. Finding that the trial court’s decision is supported by clear and convincing evidence, the judgment terminating Father’s parental rights is affirmed.

The defendant-city required applicants for its vacant firefighter position to complete a physical agility exam as part of its hiring process. The plaintiff, a female, applied for the position but was eliminated from consideration based upon her performance on the physical agility exam. She sued the city under the Tennessee Human Rights Act, claiming that the physical agility exam had a disparate impact on females. Following a one-day bench trial, the trial court ruled in favor of the city and dismissed the plaintiff’s complaint. The plaintiff appeals. We affirm.

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. The trial court found that the employee, who was over sixty years of age at the time of her permanent injury, was not subject to the cap set forth at Tennessee Code Annotated section 50-6-241(d)(1)(A), which limits disability benefits to one and one-half times the medical impairment rating and that she had proved three of the four elements in Tennessee Code Annotated section 50-6-242 and could therefore exceed the six-fold medical impairment cap set forth at Tennessee Code Annotated section 50-6-241(b). The court further found that the employee was not totally and permanently disabled and awarded ninety-eight percent permanent partial disability to both arms, a scheduled injury under Tennessee Code Annotated section 50-6-207(3)(A)(ii)(w). The trial court also ordered that the entire award of benefits in the amount of $108,587.92 be paid as
a lump sum. The employer contends the trial court erred when it failed to find that the  employee was permanently and totally disabled and when it awarded the benefits to be paid as a lump sum. We affirm the trial court judgement.

The defendant, G. Mike Holden, was convicted by a Madison County jury of one count of sale of beer to a minor, a Class A misdemeanor. He was subsequently sentenced to a term of eleven months and twenty-nine days, to be suspended following service of one hundred twenty days in the county jail. On appeal, the defendant raises the single issue of sufficiency of the evidence. However, the defendant has failed to include in the appellate record a transcript of the evidence from his trial. The defendant has submitted a statement of the evidence, pursuant to Tennessee Rule of Appellate Procedure 24(c)-(d). However, it was not timely filed pursuant to the rules. Because the issue submitted is not meritorious as a matter of law, we conclude that it is not in the interest of justice to waive the timeliness requirement. As such, the judgment of conviction is affirmed.

The defendant, Loroy Salter, was found to be in violation of his probationary sentence in the Dyersburg City Court and was sentenced to twenty days in jail and ninety days of community service. The defendant subsequently appealed the decision to the Dyer County Circuit Court, which affirmed the violation and the resulting sentence. On appeal, the defendant contends that the trial court abused its discretion in ordering revocation, based upon the defendant’s failure to pay costs and fines, without conducting a hearing on his ability to pay. Following review of the record, we affirm the judgment of the trial court.

The Defendant, Richard Ellis Stapleton, was convicted on his guilty pleas of attempted especially aggravated robbery, a Class B felony; especially aggravated burglary, a Class B felony; and two counts of facilitation of especially aggravated kidnapping, a Class B felony. The trial court imposed concurrent, Range I, twelve-year sentences to be served in the Department of Correction. In this appeal, the Defendant challenges the length of the sentences. We modify the sentences for attempted especially aggravated robbery and especially aggravated burglary to eleven years each and modify the sentences for facilitation of especially aggravated kidnapping to nine years each.

The defendant, Delawrence Williams, was convicted by a Dyer County jury of possession of .5 grams or more of cocaine with the intent to deliver or sell, a Class B felony, and assault, a Class A misdemeanor. He was subsequently sentenced by the trial court to fourteen years for the drug possession offense and eleven months, twenty-nine days for the assault offense, with the sentences to be served concurrently to each other and concurrently to his sentence in a federal case but consecutively to his sentence in another Dyer County case. The sole issue the defendant raises in this appeal is whether the evidence was sufficient to sustain the convictions. Following our review, we affirm the judgments of the trial court.

The Defendant-Appellant, Tarik Robertson, was convicted by a Shelby County jury of observation without consent, a Class A misdemeanor. He received the maximum sentence of eleven months and twenty-nine days, with four months to be served in a county workhouse. On appeal, he claims: (1) the insufficiency of the evidence; (2) the trial court did not properly exercise its role as the thirteenth juror; (3) the State committed prosecutorial misconduct in its closing argument; and (4) the trial court erred in imposing both the length and manner of his sentence. Following our review, we affirm the judgment of the trial court.

A jury convicted the defendant, Lionel E. Sherron, of attempted voluntary manslaughter,  reckless aggravated assault, and reckless endangerment by use of a deadly weapon. The trial court sentenced the defendant as a Range II, multiple offender to an effective nine-year sentence in the Tennessee Department of Correction. On appeal, the defendant argues that the evidence was insufficient for a jury to find him guilty. After review of the record, the parties’ briefs, and the applicable law, we affirm the judgments of the trial court.

The Petitioner, Raymond Bailey, appeals from the Shelby County Criminal Court’s denial of postconviction relief from his convictions for especially aggravated kidnapping, a Class A felony, and carjacking, a Class B felony. For the especially aggravated kidnapping conviction, he received a sentence of twenty-eight years at one hundred percent. For the carjacking conviction, he received a sentence of twelve years at thirty-five percent. These two sentences were to be served consecutively for an effective sentence of forty years in confinement. In his appeal, the petitioner argues that he received ineffective assistance of counsel because (1) trial counsel failed to challenge his dual convictions as violating due process under State v. Anthony, 817 S.W.2d 299 (Tenn. 1991) and State v. Dixon, 957 S.W.2d 532 (Tenn. 1997); and (2) trial counsel failed to investigate and call William Isom to testify at trial. Upon review, we affirm the judgment of the trial court.

This appeal involves the termination of parental rights. When the mother and father divorced, the mother was designated as the child’s primary residential parent. In light of the mother’s allegations that he had threatened her, the father was granted only supervised visitation. After the divorce, the father lived in Texas and visited the child in Tennessee. Several years later, the father remarried and was awarded unsupervised visitation with the child. Soon thereafter, the child went to Texas for a visit with the father and his new wife. During this visit, the father and his new wife had a domestic dispute in which the father locked her and the child out of their house. After this incident, the mother refused to allow the child to visit with the father. The father was then charged with assaulting his new wife and was given probation on this charge. Soon after that, the father violated the terms of his probation by testing positive for methamphetamine. He was sentenced to ten years in prison. At the time he was sentenced, the child was seven years old. Several years later, the mother remarried. The mother and her new husband then filed this petition to terminate the father’s parental rights and to allow the mother’s new husband to adopt the child. After a hearing, the trial court terminated the father’s parental rights, finding grounds for termination and finding that termination was in the child’s best interest. The father now appeals, challenging only the trial court’s determination regarding the child’s best interest. We affirm.

After Mother and Father divorced, a parenting plan was entered designating Father as the primary custodian of the parties’ minor child. Mother filed a petition to modify, alleging several grounds, including excessive corporal punishment. The trial court initially found no material change in circumstances, but named Mother primary custodian, based on the minor child’s preference. Father appealed, and this Court remanded, finding that the court’s ruling was premature. On remand, the trial court, again, awarded custody to Mother, finding the following material changes in circumstance: 1) Mother’s remarriage and having had two other children; 2) Mother’s completion of her undergraduate degree, her work towards a Master’s degree, and having a stable job; 3) Mother’s having left the national guard; and 4) the minor child’s preference to live with Mother. We affirm the trial court’s modification of custody.

This case involves the interpretation of the term “bodily heirs.” Testator’s will, probated in 1942, left certain lands to his daughter for her life, and then to her “bodily heirs.” The life tenant’s granddaughter concedes that she is not entitled to take through her deceased father, as his interest lapsed when he predeceased the life tenant. However, she contends that she is entitled to take directly as a “bodily heir” of the life tenant. We agree that if granddaughter is her father’s issue, and her father is the life tenant’s issue, she is a “bodily heir” of the life tenant. Thus, we reverse the trial court’s grant of summary judgment to defendants, and we remand to the trial court for further proceedings consistent with this opinion.

The petitioner, Darrell Walls, appeals the denial of his petition for post-conviction relief and argues that counsel was ineffective for failing to adequately investigate his case. The petitioner entered a best interest plea to voluntary manslaughter, a Class C felony, and aggravated assault, a Class C felony. He was sentenced as a Range II, multiple offender to eight years in confinement. After careful review, we affirm the denial of post-conviction relief by the post-conviction court.

The defendant, Christopher R. Rickman, was convicted by a McNairy County jury of theft of property greater than $1000, a Class D felony, and possession of drug paraphernalia, a Class A misdemeanor. He was subsequently sentenced to concurrent sentences of three years, to be suspended following service of ninety days, and eleven months and twenty-nine days. On appeal, the defendant raises two issues for our review: (1) whether the evidence presented was sufficient to support the convictions; and (2) whether the trial court erred in denying a sentence of full probation. Following review of the record, we find no error and affirm the convictions and resulting sentences.

Petitioner, Vincent Roger Harris, appeals the dismissal of his post-conviction petition in which Petitioner alleged that his trial counsel rendered ineffective assistance of counsel in connection with the entry of his pleas of guilty, and that his guilty pleas were not voluntarily or knowingly entered. After a thorough review we affirm the judgment of the post-conviction court.