APPELLATE COURT OPINIONS

The Petitioner, Nesha Newsome¹, filed in the Shelby County Criminal Court a petition for post-conviction relief from her convictions for especially aggravated kidnapping, aggravated kidnapping, aggravated robbery, and robbery. The Petitioner contended that her trial counsel were ineffective by failing to object to the trial court’s definition of “aiding” in response to the jury’s question regarding the criminal responsibility jury instruction, failing to argue that her convictions violated due process, and failing to have the Petitioner undergo a pretrial mental evaluation. The post-conviction court denied the petition, and the Petitioner now appeals. In addition to the foregoing issues, the Petitioner also asserts that the supreme court’s denial of funding for a forensic psychologist violated her federal and state due process rights. Upon review, we affirm the judgment of the post-conviction court.

The petitioner, Issac Scott, appeals the post-conviction court’s denying his petition for postconviction relief from his conviction for first degree premeditated murder and resulting life sentence. On appeal, he contends that he received the ineffective assistance of trial counsel and that the post-conviction court’s denial of funding for him to hire a forensic pathologist violated his constitutional rights. Based upon the record and the parties’ briefs, we affirm the judgment of the post-conviction court.

This appeal arises out of an action to hold UT Medical Group, Inc. vicariously liable for the alleged negligence of its employees. In 1997, the original plaintiff filed an amended complaint for medical malpractice and wrongful death which specifically named two doctors as employees of the defendant who negligently caused the death of a patient. As trial approached, a substitute plaintiff attempted to add new allegations concerning the negligence of a third doctor. The trial court denied the motion to amend and later granted a motion in limine to exclude evidence concerning  the alleged negligence of the third doctor as beyond the scope of the 1997 amended complaint. The plaintiff consequently was unable to offer expert testimony at trial to prove an employee of the defendant negligently caused the patient’s death, and the trial court granted judgment in favor of the defendant. We affirm.

This is an appeal from a judgment dismissing an inmate’s petition for writ of certiorari challenging a disciplinary decision. Because the appellant did not file his notice of appeal within the time permitted by Tenn. R. App. P. 4, we dismiss the appeal.

The defendant, Joe McKnight, was convicted by a Shelby County Criminal Court jury of aggravated robbery, a Class B felony, and sentenced to ten years as a Range I offender in the Department of Correction. On appeal, he argues that (1) the trial court erred in allowing the State to question defense witness, Dr. Joseph Angelillo, about the defendant’s prior criminal history; (2) the trial court erred in allowing the State to lead its witness, Stanley Johnson; (3) the trial court erred in admitting co-defendant Stanley Johnson’s statement to authorities into evidence; and (4) the evidence was insufficient to sustain his conviction. After review, we affirm the judgment of the trial court.

Upon finding a violation of probation, the trial court revoked the probationary sentence the appellant, Juan Manuel Coronado, II, was serving for a rape conviction and ordered him to serve his original eight-year sentence in the Tennessee Department of Correction. On appeal, the appellant contends that the trial court erred in revoking his probation and in ordering him to serve his sentence in confinement. Upon review, we affirm the judgment of the trial court.

Following a jury trial, the Petitioner, Raymond E. McNeil, was convicted of Class D felony evading arrest and driving on a revoked license, a Class B misdemeanor. See Tenn. Code Ann. §§ 39-16-603(b)(3), 55-50-504(a)(1). This Court affirmed his convictions on direct appeal. See State v. Raymond McNeil, No. M2007-01566-CCA-R3-CD, 2008 WL 4170330 (Tenn. Crim. App., Nashville, Sept. 10, 2008), perm. to appeal denied, (Tenn. Feb. 17, 2009). The Petitioner filed a  timely petition for post-conviction relief. Following an evidentiary hearing, the post-conviction court denied relief. In this appeal, the Petitioner raises the following issues for review: (1) Trial Counsel was ineffective for putting a police officer’s unredacted incident report on the overhead projector; (2) Trial Counsel was ineffective for acquiescing in the admission of the incident report into evidence; and (3) The trial court erred when it allowed the entire incident report into evidence. After our review, we affirm the post-conviction court’s denial of relief.

Following a jury trial, the Petitioner, Raymond E. McNeil, was convicted of Class D felony evading arrest and driving on a revoked license, a Class B misdemeanor. See Tenn. Code Ann. §§ 39-16-603(b)(3), 55-50-504(a)(1). This Court affirmed his convictions on direct appeal. See State v. Raymond McNeil, No. M2007-01566-CCA-R3-CD, 2008 WL 4170330 (Tenn. Crim. App., Nashville, Sept. 10, 2008), perm. to appeal denied, (Tenn. Feb. 17, 2009). The Petitioner filed a timely petition for post-conviction relief. Following an evidentiary hearing, the post-conviction court denied relief. In this appeal, the Petitioner raises the following issues for review: (1) Trial Counsel was ineffective for putting a police officer’s unredacted incident report on the overhead projector; (2) Trial Counsel was ineffective for acquiescing in the admission of the incident report into evidence; and (3) The trial court erred when it allowed the entire incident report into evidence. After our review, we affirm the post-conviction court’s denial of relief.

In a Governmental Tort Liability Act (“GTLA”) action, the City of Lebanon appeals the trial court’s decision to hold it liable for an accident that occurred on a swing in a city park. The City asserts that the court erred in failing to find that the swing was in a dangerous or defective condition or that the City had notice of such a condition. Additionally, the City insists that any defective condition was latent and governmental immunity was therefore not removed under the GTLA. The City also challenges the trial court’s denial of its motion for involuntary dismissal, its characterization of the case as “hybrid” in nature, its reliance on the doctrine of res ipsa loquitur in establishing negligence, and its admission of the plaintiff’s expert testimony. We conclude that the swing was in a dangerous or defective condition, which was not latent, and that the City had constructive notice of that condition. We find against the City on its remaining issues.

The petitioner, Shakir Adams, appeals the denial of his petition for post-conviction relief from his first degree premeditated murder conviction, arguing that he received the ineffective assistance of counsel. Following our review, we affirm the post-conviction court’s denial of the petition.

Buyer of real property brought suit against seller for intentional misrepresentation, fraudulent misrepresentation, breach of contract, and breach of express warranty. The trial court determined that the buyer’s reliance upon the seller’s representations was reasonable. On appeal, the seller argues that the evidence does not support the trial court’s decision and that the trial court erred in excluding expert testimony offered by the seller. Because we have determined that the trial court erred in excluding the expert testimony in question, we reverse and remand.

The petitioner, Torian Dillard, appeals the post-conviction court’s dismissal of his petition for post-conviction relief for failure to prosecute, arguing that the court abused its discretion by not appointing new counsel after the petitioner’s appointed counsel was allowed to withdraw and by requiring the petitioner to proceed with his petition pro se. Following our review, we affirm the post-conviction court’s dismissal of the petition.

Unlike the majority, I do not believe the trial court abused its discretion by prohibiting Mr. Akers’ two expert witnesses from giving their opinions on whether Mr. Goodall’s reliance on Mr. Akers’ representations was reasonable. Furthermore, even if the exclusion of this testimony was error, I find it to be harmless error. Therefore, I respectfully dissent.

The defendant, Travis King, was convicted of aggravated robbery, a Class B felony, and sentenced as a Range I, standard offender to ten years in the Department of Correction. On appeal, he argues that the evidence was insufficient to support his conviction. Following our review, we affirm the judgment of the trial court.

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.

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. Employee was injured in a motor vehicle accident. It is undisputed that his injuries were compensable and that he is permanently and totally disabled as a result of the accident. The issues on appeal are the propriety of the trial court’s calculation of the average weekly wage, the trial court’s denial of a set-off to Employer for a settlement with the third party tortfeasor, and the award of vocational expert witness fees. We find that the trial court correctly calculated the average weekly wage, but erred by denying the set-off and awarding the expert’s fees. The judgment is modified accordingly.