APPELLATE COURT OPINIONS

This appeal involves a prisoner’s medical malpractice suit stemming from the repair of an epigastric hernia. The prisoner filed a pro se complaint against the surgeon who had performed the surgery, the hospital where the surgery was performed, and a physician and physician’s assistant employed by the prison. The Circuit Court for Davidson County first granted the motion for summary judgment filed by the physician’s assistant and later granted the summary judgment motion filed by the hospital. The prisoner appealed from the order summarily dismissing his claims against the hospital. We have determined that the prisoner’s appeal must be dismissed because he has not complied with the mandatory requirements of Tenn. R. App. P. 3(f) and 4(a).

This appeal presents a custody and visitation dispute. The parties were declared divorced in the Chancery Court for Rutherford County, and the wife received sole custody of the parties’ three minor children. Six months later, the wife moved to Mississippi, and the father petitioned for a change of custody. Following a bench trial, the trial court granted the father custody of the children after concluding that there had been a material change of circumstances and that placing the children in the father’s custody would be in their best interests. The mother asserts on this appeal that the evidence does not support the trial court’s decision. We agree and, therefore, reverse the judgment.

This appeal involves a trial court’s discretion not to employ the mechanisms in Title IV-D for the payment and collection of child support. In a post-divorce proceeding seeking changes in visitation and child support arrangements, the Circuit Court for Davidson County declined to order the obligor parent to execute a wage assignment or to pay child support through the trial court clerk. On this appeal, the Attorney General and Reporter, on behalf of the Title IV-D contractor who represented the custodial parent, asserts that the trial court was statutorily required to direct the non-custodial parent to pay child support through the trial court clerk. We agree. Even though requiring the child support to be paid through the trial court clerk will, in this case, extract an unnecessary five percent penalty from the noncustodial spouse, paying child support through the trial court clerk is statutorily required in Title IV-D proceedings.

I concur in the result reached in Judge Todd’s opinion. My only reasonfor writing separately is to focus on what I perceive to be decisive in this case: the fact that the defendant did not violate a duty to the plaintiff. In that way, I avoid the nagging problem of the court apportioning fault in a case in which the plaintiff was entitled to a jury trial.

This appeal involves a posthumous paternity dispute. While the decedent’s estate was pending in probate court, a person claiming to be the decedent’s son filed a petition in the Chancery Court for Van Buren County against the decedent’s estate and his widow seeking to establish the petitioner’s right to inherit part of the decedent’s estate. The trial court  heard the evidence without a jury and determined that the petitioner had presented clear and convincing evidence that he was the decedent’s  biological son. The decedent’s wife asserts on this appeal that the evidence does not support the trial court’s conclusion. We affirm the judgment.

The plaintiff, Fredrika A. Steiner, has appealed from the summary dismissal of her suit against the defendant, The Parman Corporation, for damages for personal injury sustained in a fall on the premises of  defendant.

The petitioner, Willie Demorris Locust, appeals the Dyer County Circuit Court's denial of his petition for post conviction relief. Locust is incarcerated in the Department of Correction for his convictions of aggravated sexual battery and aggravated burglary, for which he received an effective ten year sentence that he is serving consecutively to a twenty year sentence for aggravated rape and aggravated burglary and an assault sentence of undisclosed length. See State v. Locust, 914 S.W.2d 554 (Tenn. Crim. App.) (aggravated sexual battery and aggravated burglary), perm. app. denied (Tenn. 1995); State v. Willie Demorris Locust, No. 02-C-01-9404-CC-00075 (Tenn. Crim. App., Jackson, Oct. 5, 1994) (aggravated rape and aggravated burglary), perm. app. denied (Tenn. 1995). In this appeal, he claims the lower court erred in denying him relief on three issues:

1. Whether the indictment is defective and his conviction of aggravated sexual battery is therefore void.
2. Whether the trial judge failed to instruct the jury on lesser included offenses, thereby depriving him of his constitutional right to a trial by jury.
3. Whether he was afforded the effective assistance of counsel at his trial and on direct appeal.
 

Following a review of the record, we affirm the lower court's dismissal of Locust's petition.
 

This suit involves an action for the redemption of preferred stock. The trial court found that the stock could be redeemed even though the redemption would render the corporation unable to pay its debts in the normal course of business. We reverse and remand.

Defendant, Austin Kipling Stratton, seeks review of his consecutive sentences totaling twenty (20) years for various drug offenses. The sentences resulted from a plea of guilty. We find that the notice of appeal was untimely filed, and no relief is merited under Tenn. R. Crim. P. 35(b). Accordingly, we affirm the judgment of the trial court.

Defendant William Mark Yates (Husband) appeals the final divorce decree entered by the trial court which awarded primary physical custody of the parties’ minor child to Plaintiff/Appellee Janice Blalock Yates (Wife), ordered the Husband to pay child support and alimony in solido to the Wife, and distributed the parties’ real and personal property. We affirm.

Plaintiff-Appellant, John H. Fournier (“Fournier), appeals the order of the trial court entering summary judgment in favor of Defendants-Appellees, M. V. Tichenor (“Tichenor”) and Bowling, Bowling & Associates (“Law Firm”), on Fournier’s claims for negligent misrepresentation and breach of contract.

This case involves a claim under 42 U.S.C.A. § 1983, filed by a state prisoner against employees of the Tennessee Department of Corrections. One defendant is a physician employed by Department. Plaintiff appeals the dismissal of his claims against all defendants. We affirm.

This case presents for review the decision of the Chancery Court of  Decatur County finding that the Defendant, Robert Barton (“Father”) did not  abandon his son, Chad Andolino (“Son”) and, therefore, dismissing  Plaintiffs’, Charles and Lorena Mix (“Mixes”), petition for adoption. The Mixes appealed. For reasons stated hereinafter, we affirm the judgment of the trial court.

This appeal concerns an action by the appellant, John Brown (Brown), to recover workers’ compensation benefits from his employer, the appellee, County of Shelby (County), who has not elected to come within the provisions of the Workers’ Compensation Law. Brown alleges that he sustained on-the-job injuries while employed by the County as a counselor at the Shelby County Jail. The record reflects that the County has implemented its own policy whereby it compensates its employees for on-the-job injuries and relies to some extent on the Workers’ Compensation Act as a guide in determining benefits. At trial, it was established that under said policy, the County had paid Brown’s temporary disability benefits and that Brown sought only permanent disability benefits and the medical expenses incurred from Dr. John P. Howser. The trial court awarded a permanent partial disability of 7% to the body as a whole and entered a judgment for Brown in the amount of $5,863.68. No award was made for Dr. Howser’s expenses. Brown appeals, identifying the issues for review as follows:

Plaintiff/Appellant, Annette Dubose (“Dubose”), appeals the judgment of the trial court denying her motion for a new trial and specifically finding that the jury verdict and the judgment previously entered in this case were proper and correct. For reasons hereinafter stated, we affirm the judgment of the trial court.

The issues before the Court and sufficiency of the evidence and comparative propottionality of the sentence of death. I agree with the majority that the evidence is sufficient to support the jury's finding of premeditation, that the evidence is sufficient to support the jury's finding of torture (i.e. the "infliction of severe physical or mental pain upon the victim while he or she remains conscious"), and the aggravating circumstance outweighs the mitigating circumstances. However, I would find that the sentence of death is disproportionate.

The defendant, Dmitri Johnson, appeals as of right from the twenty-year sentence imposed by the Circuit Court of Montgomery County for his conviction upon a guilty plea for second degree murder, a Class A felony. The defendant contends that the trial court improperly relied upon facts not in evidence in its sentencing decision. He also contends that the trial court improperly applied three enhancement factors and refused to apply two additional mitigating factors. We believe that the case should be remanded for a new sentencing hearing.

The State of Tennessee (state) appeals as of right from a judgment of the trial court suppressing evidence seized by law enforcement officers from the person of Norman Curtis without a search warrant, and the residences of the Chamberses and Curtis under color of a search warrant. Two issues are presented for review. The state contends there were exigent circumstances which permitted officers executing the search warrant at the Chamberses’ residence to enter the dwelling without complying with the “knock and announce” requirement. The state further contends the search of Norman Curtis’s person when he arrived at the Chamberses’ residence while the officers were executing the search warrant was reasonable. After a thorough review of the record, the briefs submitted by the parties, and the law governing the issues presented for review, it is the opinion of this court that the judgment of the trial court should be affirmed. The State of Tennessee has failed to illustrate why the evidence contained in the record preponderates against the findings made by the trial court.

I concur, in principle, with Justice Reid’s dissent. I would, however, increase the pool of similar cases to include all cases in which a trial judge’s report is required by Supreme Court
Rule 12.1 The majority chose to exclude from the proportionality review pool all cases in which the State did not seek the death penalty and all cases in which no capital sentencing hearing was
held. In my view, this exclusion discourages a more meaningful proportionality analysis.

The appellant, Ryan Moran (defendant), was convicted of attempted first degree murder, a Class A felony, especially aggravated kidnapping, a Class A felony, especially aggravated robbery, a Class A felony, and assault, a Class A misdemeanor. The defendant entered a no contest plea to attempted first degree murder and guilty pleas to the remaining charges. The trial court found the defendant was a standard offender and sentenced the defendant to the following Range I sentences: for attempted first degree murder, twenty-five (25) years in the Department of Correction, for especially aggravated kidnapping, twenty-five (25) years in the Department of Correction, for especially aggravated robbery, twenty-five (25) years in the Department of Correction, and for assault, eleven (11) months and twenty-nine (29) days. The trial court ordered that the sentences for attempted first degree murder, especially aggravated kidnapping, and especially aggravated robbery should be served consecutively. The sentence for assault is to be served concurrently with the other sentences. The effective sentence is confinement for seventy-five (75) years in the Department of Correction.