Ruskin A. Vest, Jr., et al. v. Duncan-Williams, Inc.
M2003-02690-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Judge Jim T. Hamilton

Plaintiffs sued defendant alleging that defendant was negligent, breached its fiduciary duty, and committed fraud and state securities act violations in brokering the sale of municipal bonds to plaintiffs. Defendant filed a motion to dismiss for lack of subject matter jurisdiction and improper venue based upon an arbitration agreement plaintiffs entered into with a third party. The trial court denied defendant's motion to dismiss and defendant appealed. After reviewing the record, we hold that defendant has failed to prove that it is an intended third party beneficiary of the arbitration agreement. We affirm.

Waynell C. Burnette v. Teddy Sundeen, et al.
E2003-01404-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge W. Dale Young

In this litigation arising out of an automobile accident, Waynell C. Burnette ("the plaintiff") filed a motion asking the trial court to sanction Teddy Sundeen and Elhame Dauti ("the defendants") for a discovery abuse. Acting under the authority of Tenn. R. Civ. P. 37.02, the court entered a judgment by default against both defendants and, in the same order, awarded the plaintiff damages of $100,000. The defendants appeal, contending that they were not afforded proper notice of the plaintiff's intention to raise the issue of damages at the hearing on the motion for sanctions. We vacate so much of the trial court's order as awards the plaintiff unliquidated damages of $100,000.

Daniel Hamilton v. T & W of Knoxville, Inc., D/B/A Lexus of Knoxville
E2003-02004-COA-R3-CV
Authoring Judge: Sr. Judge William H. Inman
Trial Court Judge: Judge Dale C. Workman

By special verdict the jury found that the defendant automobile dealer willfully and knowingly
violated the Consumer Protection Act by selling the Plaintiff a used Lexus automobile that had been wrecked but nevertheless was a certified vehicle under the manufacturer’s guidelines. More than a year later - after the Plaintiff himself wrecked the vehicle and drag-raced it various times - he discovered that some panels had been re-painted, leading to the conclusion that the vehicle had been wrecked before he purchased it. The dealer agreed to repurchase the vehicle which was left in its charge, but the Plaintiff, after consulting counsel, returned to the Defendant’s place of business and removed the vehicle. The jury assessed damages of $4000.00, remitted to $2500.00. The Plaintiff moved for treble damages and attorney fees: the Defendant moved for judgment NOV, because the issue of “willful and knowing” violation of the Tennessee Consumer Protection Act is a question of law for the court. The motion for judgment NOV was granted. Plaintiff was awarded $5000.00 attorney fees which he claims is inadequate. We affirm.

Melissa Frazier Norwood Hoffmeister, now Brink v. John Kenneth Hoffmeister
E2003-02022-COA-R3-CV
Authoring Judge: Sr. Judge William H. Inman
Trial Court Judge: Chancellor John F. Weaver

The custody of a four-year old boy is the pivotal issue in this case. The Chancellor found that the father was the better qualified to be the primary residential custodian of his son following a recitation of the bizarre conduct of the mother. We affirm.

Stacey G. Hill v. Donna Elizabeth Frazier Hill
E2003-02173-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge W. Neil Thomas, III

Donna Elizabeth Frazier Hill ("Mother") filed a complaint against Stacey G. Hill ("Father") seeking to modify the parties' Permanent Parenting Plan ("the parenting plan"). Father responded and filed a counterclaim. Mother proposed a revised plan that would reduce Father's visitation time and increase his child support obligation. The trial court denied Mother's revised plan with respect to the oldest child, but granted her proposed changes with respect to the other children. The trial court designated Father as the primary residential parent of the oldest child and increased his child support obligation for the younger children; however, the trial court refused to order Mother to pay child support for the oldest child on the ground that Father "has not required the [oldest] child to comply with the original Parenting Plan based on the child's expressed desires." Father appeals, arguing that the trial court erred in deviating from the Child Support Guidelines ("the Guidelines") based upon the ground espoused by the court. We vacate so much of the trial court's order as absolves Mother of any obligation to support the oldest child in the custody of Father.

Kelvin Shoughrue, et al., v. St. Mary's Medical Inc., et al.
E2003-00116-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Judge Harold Wimberly

In this appeal in a medical malpractice lawsuit, the Appellants, J.D. Lee and the law firm of Lee, Lee & Lee, contend that the Knox County Circuit Court erred in its award of attorneys' fees. We affirm the judgment of the Trial Court and remand.

Damien Owes v. State of Tennessee
M2002-03020-CCA-R3-PC
Authoring Judge: Judge J. Curwood Witt, Jr.
Trial Court Judge: Judge Steve R. Dozier

The petitioner, Damien Lamar Owes, was found guilty by a Davidson County jury and stands convicted of especially aggravated robbery, aggravated burglary, and five counts of especially aggravated kidnapping. He is serving a 30-year sentence. Aggrieved by his convictions, the petitioner pursued a pro se action for post-conviction relief predicated on the alleged ineffective assistance of trial and appellate counsel. Following the appointment of counsel and a hearing, the petition was denied. The petitioner appeals and urges that he is entitled to relief. We disagree and affirm the dismissal of the petition.

In Re: Nellie Elizabeth Crowell
M2002-02285-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Judge Frank G. Clement, Jr.

This is a Will construction case. The decedent's Will provided that her estate would be distributed to her husband. However, the husband predeceased the decedent leaving no issue. The only remaining provision in the Will provided that her estate would be distributed to certain orphan's homes if she and her husband died at the same time. The trial court found it unreasonable to construe the Will to require simultaneous death and distributed the estate to the orphan's homes. We hold that the Will contains a failed condition resulting in intestate succession. We reverse and remand.

State of Tennessee v. Patrick Collins
M2002-02885-CCA-R9-CO
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Frank G. Clement, Jr.

The trial court dismissed count two of this indictment charging the violation of the implied consent law and barred the State from arguing in the defendant's trial for DUI that he knew he would suffer a loss of driver's license if he refused the breath test. The State appeals. We conclude that the defendant was sufficiently advised of the possible suspension of his driver's license upon his refusal to submit to testing to satisfy the warning requirement of Tennessee Code Annotated section 55-10-406(a)(2). The defendant need not be advised of the correct and exact term of the suspension in order to satisfy the statutory warning requirements. The defendant was advised that he would suffer a loss of driver's license if he refused the breath test. We reverse the trial court's dismissal of the violation of implied consent law. Likewise, we reverse the trial court's limiting the State from arguing that the defendant knew he would suffer a loss of driver's license if he refused the breath test. Accordingly, we remand for trial consistent with this opinion.

State of Tennessee v. David Clinton York
M2003-00525-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Lillie Ann Sells

The defendant, David Clinton York, an inmate in the Clay County Jail, pled guilty to felony escape and was sentenced as a Range III, persistent offender to five years in the Department of Correction. On appeal, he argues that the trial court erred in determining that he was a persistent offender, in denying alternative sentencing, and in applying the enhancement and mitigating factors. Following our review, we affirm the judgment of the trial court.

State of Tennessee v. Stanley Davis In Re: Ray D. Driver, D/B/A Driver Bail Bonds - Order
E2003-00765-CCA-R3-CD
Authoring Judge: Judge Joseph M. Tipton

Upon its own motion, the court hereby withdraws the opinion and vacates the judgment
previously filed on April 26, 2004, in this case. A new opinion and judgment will be filed.

Sally Qualls Mercer, et al., v. Vanderbilt University, Inc., et al.
M2000-00801-SC-R11-CV
Authoring Judge: Justice Janice M. Holder
Trial Court Judge: Judge Carol L. Soloman

We granted this appeal, in part, to determine whether fault was properly assessed against the patient in this medical malpractice action. We overrule Gray v. Ford Motor Co., 914 S.W.2d 464 (Tenn. 1996), and hold that fault may not be assessed against a patient in a medical malpractice action in which a patient’s negligent conduct provides only the occasion for the medical attention, care, or treatment which is the basis for the action. We also hold that the additional issues raised by the defendant are without merit. We therefore affirm the trial court’s post-trial ruling that the defendant is 100% at fault and is responsible for the full amount of damages found by the jury. Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Appeals Affirmed in Part; Reversed in Part; Jury Verdict Reinstated
 

Sally Qualls Mercer, et al., v. Vanderbilt University, Inc., et al. - Dissenting
M2000-00801-SC-R11-CV
Authoring Judge: Chief Justice Frank F. Drowota, III
Trial Court Judge: Judge Carol L. Soloman

By overruling Gray v. Ford Motor Co., 914 S.W.2d 464 (Tenn. 1996), a decision released only eight years ago, the majority disregards the principle of stare decisis and undermines the fairness goal of our prior comparative fault decisions. Therefore, I dissent from the majority’s decision in this case. In addition, like the Court of Appeals, I believe the trial court erred by excluding evidence of Larry T. Qualls prior alcohol-related conduct and testimony of two defense witnesses and by commenting upon the credibility of a defense witness. Given the cumulative effect of these errors, Vanderbilt is entitled in my view to a new trial.

Gary Johnson v. State of Tennessee
W2003-00220-CCA-R3-PC
Authoring Judge: Judge Jerry L. Smith
Trial Court Judge: Judge Joseph H. Walker, III

The petitioner pled guilty to one count of burglary and one count of theft of property between $1,000 and $10,000 on August 21, 2001. He was sentenced to twelve years for each offense to run concurrently to be served at sixty percent as a career offender. The petitioner filed a petition for post-conviction relief on April 16, 2002. The trial court denied the petition on January 13, 2003.  The petitioner appeals this denial alleging that he was afforded ineffective assistance of counsel and his plea was not knowingly, intelligently and voluntarily entered. We affirm the decision of the trial court.

Stella B. Todd v. Boulevard Terrace Rehabilitation and
M2003-01357-WC-R3-CV
Authoring Judge: Howell N. Peoples, Special Judge
Trial Court Judge: Robert E. Corlew, III, Circuit Judge
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated _ 5-6- 225(e)(3) for hearing and reporting of findings of fact and conclusions of law. The trial court found the claimant failed to give the statutory notice of injury and dismissed the suit. We affirm.

Emily P. Bowen v. Frito-Lay, Inc.,
M2002-02552-WC-R3-CV
Authoring Judge: James L. Weatherford, Sr.J.
Trial Court Judge: Robert L. Jones, Chancellor
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel in accordance with Tenn. Code Ann. _ 5-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The employee in this case sustained 2 separate work-related injuries and one back injury at home. She is now totally disabled and draws Social Security Disability benefits. The employee argues that the trial court erred: (1) in finding that the employee did not sustain a compensable back injury in the course and scope of her employment in March 1999; and (2) in dismissing her complaint against the Second Injury Fund. Additionally, the employer contends that the trial court erred when it held that the employee's February 1998 back injury that occurred while working for this employer was not barred by the statute of limitations. The panel has concluded that the judgment of the trial court should be affirmed. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Chancery Court Affirmed JAMES L. WEATHERFORD, SR.J., in which JANICE M. HOLDER, J., and JOE C. LOSER, JR., SP.J., joined. Gene Hallworth, Columbia, Tennessee, for the appellant, Emily P. Bowen. Edward A. Hadley, Nashville, Tennessee, for the appellees, Frito-Lay, Inc., and RSKCo. Paul G. Summers, Attorney General; E. Blaine Sprouse, Assistant Attorney General; James G. Davis, for the appellee James Farmer, Director of Tennessee Department of Labor and Workforce Development, Workers' Compensation Division, Second Injury Fund. MEMORANDUM OPINION Ms. Emily P. Bowen was 5 years old at the time of trial, has a seventh-grade education, and has no special skills or training. She worked as a packer for Frito-Lay, Inc., from June 3, 198, until May 17, 1999. On February 4, 1998, Ms. Bowen was working on a wrapper line when she picked up a 35 pound roll of cellophane and immediately felt sharp pain in her back. Dr. Gregory Lanford, a neurosurgeon and her long-time treating physician, took her off work and treated her conservatively with medication and physical therapy. A myelogram revealed nerve root impingement and on May 19, 1998, Dr. Lanford performed a lumbar diskectomy and nerve root decompression at L5-S1. Dr. Lanford released her to return to light duty work in July of 1998. In November of 1998, he released Ms. Bowen to return to work full-time at Frito-Lay with a 25 pound lifting restriction. He assigned a 1% additional impairment rating for the February 1998 injury.1 Ms. Bowen continued taking medication. At her January 14, 1999 appointment, Dr. Lanford scheduled a follow-up appointment for April 15, 1999. In March of 1999, Ms. Bowen was on a temporary assignment packing cookies in tins and placing trays of cookie tins weighing approximately 18 pounds on a bakers' rack. She started having lower back and leg pain, right arm and shoulder pain caused by "leaning over the tray and reaching over the belt in that awkward [bent-over] position for so long." She reported this injury to her employer but continued to work. On April 15, 1999, Ms. Bowen went to see Dr. Lanford for her previously scheduled follow- up appointment for the 1998 surgery. His notes indicate that she had a new problem and "had re- injured her back" while lifting cookie trays at work. Dr. Lanford found diminished range of motion but x-rays were "unrevealing." He diagnosed low back strain but stated her main complaint was the shoulder pain and that she did not complain of radicular leg pain at this point. He prescribed physical therapy and scheduled a follow-up appointment for May 2, 1999. The physical therapist prescribed a TENS unit, heat therapy, and a back support for Ms. Bowen to wear while at work. Physical therapy was provided at the plant and Ms. Bowen did not miss any work because of this injury. 1While working for Frito-Lay, Ms. Bowen had a series of injuries for which she underwent 2 lumbar surgeries and 1 cervical spine surgery. In 1997 M s. Bowen and Frito-Lay reached a settlement agreement for these injuries. The settlement agreement does not assign percentages of disability but cites a physician's impairment rating of 1% for the lumbar spine and 15% for the cervical spine. M s. Bowen continued to work for Frito-Lay after the 1997 settlement and none of these earlier injuries is the subject of this litigation. -2-

Mamie Richburg v. Whirlpool Corporation
M2003-00364-WC-R3-CV
Authoring Judge: Allen W. Wallace, Sr. J.
Trial Court Judge: Robert E. Corlew, III, Chancellor
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 5-6-225(e)(3) for hearing and reporting to the Supreme Court of the findings of fact and conclusions of law. The issues presented to the trial court were: (1) whether the plaintiff sustained an injury to her neck arising out of the course and scope of her employment on October 18, 2; (2) whether proper notice was given of her injury; and (3) whether defendant would be allowed a setoff for payment of unemployment compensation benefits against temporary total disability payments. As discussed below, we affirm the trial court in part and reverse in part. Tenn. Code Ann. _ 5-6-225(e) (2 Supp.) Appeal as of Right; Judgment of the Chancery Court is Affirmed in part and Reversed in part. ALLEN W. WALLACE, SR. J., in which ADOLPHO A. BIRCH, JR., J., joined and JOHN K. BYERS, SR. J., not participating. David T. Hooper, Brentwood, Tennessee, for Appellant Whirlpool Corporation Dicken E. Kidwell, Murfreesboro, Tennessee for Appellee Mamie Richburg MEMORANDUM OPINION Employee, Mamie Richburg, initiated this civil action to recover workers' compensation benefits for an alleged work-related injury. Employer, Whirlpool Corporation, denied that employee suffered an injury arising out of and in the course and scope of her employment and averred the employee failed to give notice as required by law. Following a trial of this cause on October 3, 22, the trial court ordered permanent partial disability benefits based on forty percent to the body as a whole. Employer filed a motion to alter or amend the final judgment and made an oral motion to amend their pleadings to conform with the evidence. The motion sought the affirmative defense of setoff for payment of unemployment benefits received by employee during the time employee received temporary total benefits following her neck injury. The trial court granted the motion allowing setoff. The employer has appealed the trial court's award and employee appeals the trial court's allowance of a setoff.

Brian Durant v. Saturn Corporation
M2003-00566-WC-R3-CV
Authoring Judge: John A. Turnbull, Sp. J.
Trial Court Judge: The Hon. Chancellor Russ Heldman
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. 5-6-225(e)(3) to hear and report to the Supreme Court Findings of Fact and Conclusions of Law. Employee brought this action to recover workers' compensation benefits for injuries he sustained in an automobile accident on employer's premises after leaving the plant, but before arriving at the control gate to the Saturn complex. The trial court held that the injuries did not arise out of the employment and granted Saturn's Rule 41 motion to dismiss. We reverse the trial court and hold that the premises rule announced in Lollar v. Wal-Mart Stores, Inc., includes roads provided by the employer inside the access gate to the employer's industrial complex. We further hold that the injury arose out of the employment. We remand the case to the trial court for further proceedings consistent with our holdings. Tenn. Code Ann. Section 5-6-225(e) (1999); Appeal as of Right: Judgment of the Circuit Court is reversed and case is remanded. JOHN A. TURNBULL, Sp. J. in which FRANK DROWOTA C.J., and HOWELL N. PEOPLES, SP. J., joined. Larry R. Williams and A. Allen Smith, III, Nashville, Tennessee, for Appellant, Brian Durant. Thomas H. Peebles, IV, Tennessee, for Appellee, Saturn Corporation. Opinion This case requires us to interpret the "premises rule" laid down in Lollar v. Wal- Mart Stores, Inc., 767 S.W.2d 143 (Tenn. 1989) as extended by the Supreme Court in Copeland v. Leaf, Inc., 829 S.W.2d 14 (Tenn. 1992). To be compensable under our workers' compensation statute, an injury must be one "arising out of and in the course of employment." T.C.A. 5-6-12(a)(5) (1991). In Lollar, the Supreme Court examined the substantial body of case law governing workers' compensation liability when an employee is injured en route to or from work, and concluded that the previous set of guidelines as set down in Woods v. Warren, 548 S.W.2d 651 (Tenn. 1977) "had not proved workable" and had resulted in inequities. Lollar at p. 15. The court re-evaluated its previous adherence to the "unique minority rule" and instead adopted a premises liability standard employed by nearly all jurisdictions, see 1 Larson Workmen's Compensation Law 15.11 (1994). The Supreme Court held "that a worker who is on the employer's premises coming to or going from the actual work place is acting in the course of employment [and] that if the employer has provided a parking area for its employees, that parking area is part of the employer's premises regardless of whether the lot is also available to customers or the general public." 767 S.W.2d at 15. In Copeland, the Supreme Court extended the holding in Lollar and held "that employees who must cross a public way that bisects an employer's premises and who are injured on that public way while traveling a direct route between an employer's plant facility and parking lot are entitled to workers' compensation benefits." Copeland, 829 S.W.2d, at 144. The court in Copeland pointed out that the employer was responsible for creating the necessity for the employee to encounter the particular hazards of the trip between a non- contiguous parking lot and the working plant itself. Accordingly, the Supreme Court felt that an extension of the "premises rule" announced in Lollar was warranted. Id. Facts and Procedural Background Saturn maintains an industrial complex in Maury County where the corporation assembles Saturn motor vehicles. Saturn built and maintains roads in the complex leading from the entrance gate to the work plant. Saturn had posted a thirty- five mile speed limit on Ephlin Parkway as a safety regulation. On December 5, 2, at approximately 2: a.m., Brian Durant was leaving work from the power train plant, one of three main plant locations in the Saturn complex. Although Saturn had constructed other roads over which Durant could have traveled to reach the main Saturn gate and the public highway (U.S. 31), he chose to go his normal shortest route along Ephlin Parkway, one of the main traffic arteries within the complex. Durant, who had worked at Saturn for more than eight years, was traveling at what he -1-

John T. Heflin v. State of Tennessee
M2003-01032-CCA-R3-PC
Authoring Judge: Judge Jerry L. Smith
Trial Court Judge: Judge L. Craig Johnson

On March 11, 1998, the petitioner, John T. Heflin, was convicted of first degree murder and sentenced to life imprisonment. On appeal this Court affirmed the judgment of conviction and the sentence. See, State v. Heflin, 15 S.W.3d 519 (Tenn. Crim. App. 2001). The petitioner subsequently sought post-conviction relief alleging that his trial attorney was ineffective in failing to object to the testimony of a state witness. The trial court concluded that the failure to object to this witness' testimony did not amount to the ineffective assistance of counsel. After a review of the record and the applicable authorities we conclude that the petitioner received the effective assistance of counsel at trial and therefore the judgment of the post-conviction court is AFFIRMED.

State of Tennessee v. Terry Byington
E2003-02814-CCA-R3-CD
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Judge Phyllis H. Miller

A Sullivan County jury convicted the defendant, Terry Byington, of driving under the influence (DUI), fourth offense, and driving on a revoked license. The trial court ordered the defendant to serve an effective four-year sentence in confinement as a Range II multiple offender. On appeal, the defendant contends: (1) the evidence is insufficient to support his DUI conviction; (2) the arresting officer improperly presented expert testimony regarding field sobriety tests; (3) the trial court erred in ruling that the state could question the defendant regarding a prior perjury conviction more than ten years old; (4) the trial judge erred in refusing to recuse herself; and (5) his sentence is excessive. We affirm the judgments of the trial court.

State of Tennessee v. Richard Lafayette Sumner
E2003-00570-CCA-R3-CD
Authoring Judge: Judge Joseph M. Tipton
Trial Court Judge: Judge Ben W. Hooper, II

The defendant, Richard Lafayette Sumner, appeals as of right from his convictions by a jury in the Cocke County Circuit Court for two counts of first degree premeditated murder, one count of first degree felony murder, and one count of aggravated arson. The defendant was sentenced to life imprisonment with the possibility of parole for each murder and twenty-five years for the aggravated arson, to be served concurrently in the Department of Correction. He contends that the evidence is insufficient to support the jury's rejection of his insanity defense. We hold that the evidence is sufficient to convict the defendant of first degree murder. We also hold, though, that the convictions for the premeditated and felony murders in counts one and three should be merged pursuant to the Double Jeopardy Clause. We affirm the convictions, but vacate the judgments as to counts one and three and remand the case for the trial court to enter a judgment reflecting a merger of those two counts.

State of Tennessee v. Anthony Crowe - Dissenting
W2003-00800-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt, Jr.

I respectfully disagree with the majority opinion’s conclusion that the defendant’s motion to withdraw his plea was properly denied. I believe that a sufficient factual basis for the defendant’s plea is lacking and that the plea was the result of a mistaken belief regarding criminal liability, such that manifest injustice permits the plea to be withdrawn.

State of Tennessee Department of Children's Services v. Pamela Atkison, et al.
W2003-02109-COA-R3-PT
Authoring Judge: Judge Alan E. Highers
Trial Court Judge: Judge Robert W. Newell

This case involves the termination of the parental rights of Mother and Father over Child. Only Mother appeals the Juvenile Court’s decision. Specifically, the Juvenile Court found clear and convincing evidence to terminate Mother’s parental rights on the basis of abandonment, persistent conditions, and noncompliance with the permanency plan. In addition, Mother appeals the trial court’s denial of her motion to transfer the case and have the issue presented to a jury. Finally, Mother asserts the trial court judge erred when he did not recuse himself. For the following reasons, we affirm the decision of the trial court.
 

Wayne Jerrolds v. Robert D. Kelley and wife, Mitsy Kelley v. Eddie K. Whitlow, Trustee for the Hardin County Bank
W2003-00739-COA-R3-CV
Authoring Judge: Judge Alan E. Highers
Trial Court Judge: Judge C. Creed McGinley

This cases involves an action for declaratory judgment regarding an easement for the benefit of a landlocked parcel. The lower court found that an easement does exist and that the owners of the servient parcel are not entitled to monetary damages. On appeal, the owners of the servient parcel maintain that the lower court demonstrated bias in its comments from the bench and, further, that it erred in failing to award damages. For the following reasons, we affirm the ruling of the trial court.
 

State of Tennessee, Department of Children's Services v. Sandra Lilly, in the Matter of K.M.
W2003-02156-COA-R3-PT
Authoring Judge: Judge Alan E. Highers
Trial Court Judge: Judge Rachel J. Anthony

This case arises from the termination of parental rights of Mother and Father. Only Mother has appealed the decision of the trial court, terminating her parental rights on the grounds that (1) she abandoned Child by failing to visit, (2) she abandoned Child by failing to provide more than token support, and (3) the conditions which led to Child’s removal still persist. Mother appeals arguing that the State of Tennessee Department of Children’s Services failed to carry its burden of proof for these grounds. In addition, Mother argues that the Department of Children’s Services failed to prove that such termination of parental rights is in the best interest of Child. Finally, Mother argues the trial court committed prejudicial error when it allowed the rebuttal testimony of a witness in violation of the sequestration rule. For the following reasons, we affirm the decision of the trial court.