APPELLATE COURT OPINIONS

The mother has filed a notice of appeal challenging the trial court’s decision regarding the father’s child support obligation. Because the mother did not file her notice of appeal within the time permitted by Tenn. R. App. P. 4, we dismiss the appeal.

The defendant was convicted of first-degree murder in the perpetration of rape. In the penalty phase of the trial, the jury imposed a sentence of death, finding three aggravating circumstances beyond a reasonable doubt: (1) the defendant was previously convicted of one or more violent felonies; (2) the murder was especially heinous, atrocious, or cruel; and (3) the murder was committed during the defendant’s escape from lawful custody or from a place of lawful confinement. The Court of Criminal Appeals affirmed the conviction, but reversed the death sentence, holding that the trial court’s limitation on the mitigating evidence during the penalty phase required a new sentencing hearing. This Court affirmed. A second jury sentenced the defendant to death, concluding that the single aggravating circumstance, that the defendant had previously been convicted of one or more violent felonies, outweighed the mitigating circumstances beyond a reasonable doubt. The Court of Criminal Appeals affirmed. This Court reversed, holding that because the trial court had erroneously admitted detailed evidence of the defendant’s prior violent felony offense, a third sentencing hearing was required. The jury again imposed a sentence of death, concluding that two statutory aggravating factors, that the defendant had been previously convicted of a felony involving the use of violence to the person and that the murder was committed while the defendant was engaged in the commission of a robbery, had been established beyond a reasonable doubt, and further determining that the aggravating circumstances outweighed the evidence of the mitigating circumstances beyond a reasonable doubt. This sentence was affirmed by the Court of Criminal Appeals. Upon careful review of the entire record, we hold as follows: (1) the defendant’s constitutional right to a fair and impartial jury was not violated by the disqualification of a prospective juror; (2) the prosecutor’s closing argument did not result in the use of non-statutory aggravating factors in the jury’s weighing process warranting reversal of the death sentence; (3) the admission of photographs of the body did not constitute error; (4) the trial court’s instructions on parole did not violate the defendant’s right to due process of law and heightened reliability; (5) the mandatory criteria of Tennessee Code Annotated section 39-13-206(c)(1) are satisfied; and (6) the reduction of the amount of compensation sought by appellate defense counsel by a judge on the Court of Criminal Appeals did not require his disqualification from participating in this case. The judgment of the Court of Criminal Appeals is, therefore, affirmed.

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 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.

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, 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.

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.

The father of a young child born out of wedlock petitioned the juvenile court to be awarded custody of the child. The mother responded by asking the court to award custody to her. After many delays, the juvenile court referee conducted a lengthy hearing and granted the father’s petition, holding that although it was a close question, it was in the child’s best interest for the father to exercise custody. The mother appealed to the Juvenile Court Judge, who reached the same conclusion after another hearing. The mother now appeals to this court, contending that custody should have been awarded to her for several reasons, including the operation of the tender years doctrine. We affirm the trial court.

In this divorce case, the trial court’s judgment ended the relatively-long marriage of Carol Denice Pettijohn (“Wife”) and Patrick Carl Pettijohn (“Husband”). Husband appeals the trial court’s division of the marital property, its award of alimony in solido to Wife, and the duration of the alimony in futuro award. We affirm.

Petitioner, Juan Markeith Collier, pled guilty to aggravated kidnapping and attempted second degree murder, both Class B felonies, and was sentenced to concurrent sentences of eleven years. The eleven-year sentence for aggravated kidnapping was required by statute to be served at one-hundred percent. In this appeal from the denial of the post-conviction petition, Petitioner asserts that his guilty plea was involuntary because trial counsel and two “loved ones” coerced him into accepting the plea. After a thorough review of the record, we conclude that Petitioner has failed to show that his trial counsel rendered ineffective assistance of counsel and affirm the judgment of the post-conviction court.

The employee alleged that she sustained carpal tunnel syndrome and a right shoulder injury as a result of repetitive work activities. She was examined by several doctors provided by her employer, each of whom found that she had no permanent work injury. She sought and received treatment on her own with a physician who treated her for shoulder impingement and carpal tunnel syndrome. This doctor assigned permanent impairment but also testified that those conditions were not work-related. An evaluating physician assigned permanent impairment and testified that the conditions were work-related. Employee was a part-owner of an upholstery business during a period of time prior to the onset of her symptoms. Her testimony concerning the nature of her work for that business was inconsistent. The trial court found that she had not sustained her burden of proof and entered judgment for her employer. She has appealed, contending that the evidence preponderates against the trial court’s findings. We affirm the judgment.

As this action was pleaded and tried, it was (1) a claim by Nancy Gates (“the plaintiff”) seeking to be declared the owner of a life estate in a tract of property; and, as a consequence of her estate, seeking the removal of Katie Williams (“the defendant”), the widow of the plaintiff’s son, Tony, from the property; and (2) a counterclaim by the defendant alleging that she had become the owner of an interest in the property by adverse possession due to her having lived on the property since the late 1960s or early 1970s. The trial court held that, as to these claims, neither party was entitled to relief against the other. The court found, however, that the plaintiff did, in fact, have a life estate in the subject property, and that the defendant had not proven adverse possession because her entry onto the property was with the plaintiff’s permission. The court then held, sua sponte, that the defendant had a license in the property coupled with an interest therein that had been acquired by building numerous structures on the property with the plaintiff’s knowledge and that it would not be equitable to require the defendant to move. The plaintiff appeals. We affirm the trial court’s judgment in part and reverse in part and remand for a hearing on the issue of what it would take to do equity given the facts of this case.

Charles Pesce (“the Owner”) is a practicing dentist. He contracted with East Tennessee Construction Services, Inc. (“the Builder”) to build him a new office for his practice on a lot owned by him. The Builder constructed the building, but with numerous undisputed defects. The Owner filed this action which culminated in a bench trial that lasted several days. Based upon diminution in value, the trial court awarded the Owner $282,000 in damages. The trial court expressly found that the cost to repair the structure was an unacceptable measure of damages because it “is disproportionate . . . to the difference in the value of the structure actually constructed and the one contracted for.” The court awarded the Owner discretionary costs of over $10,000. The Owner appeals challenging the measure of damages as well as the amount awarded under the diminution in value measure. The Owner also challenges the trial court’s failure to order the Builder to reimburse him for fees charged by one of the Owner’s experts in connection with his discovery deposition taken by the Builder. The Builder challenges the award of discretionary costs and argues that the damages awarded are excessive. We reverse in part and affirm the remaining judgment as modified.

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. Sarah Louise Bean (“Employee”) sustained bilateral shoulder injuries in the course and scope of her employment with Tepro, Inc. (“Employer”). After undergoing surgery on both shoulders, she was released to return to work. Employer was facing  reduced work volume at this time, and Employee worked only one day over the course of the next two months. She worked sporadically during the next four months and then was laid off indefinitely due to economic conditions. During the layoff, she applied for and received Social Security disability benefits. When she was called back to work after four months of layoff, she declined to return. At trial, the trial judge heard proof regarding the extent of Employee’s permanent physical impairment from Employee’s evaluating physician, Employee’s treating physician, and a Medical Impairment Registry (“MIR”) physician. After the conclusion of the proof, the trial court determined that Employee had sustained a permanent physical impairment of 19% to the body as a whole, that the impairment rating assigned by the MIR physician was rebutted by clear and convincing evidence, that the Employee was subject to the cap imposed by Tennessee Code Annotated section 50-6-241(d)(1)(A), and that she was entitled to an award of 28% permanent partial disability (“PPD”) benefits. Both parties challenge the trial court’s decision. After review, we modify the award of PPD to 21%, reduce the award of discretionary costs by $800, and affirm the remainder of the trial court’s judgment.

The trial court affirmed the Report of a special master interpreting the parties’ Marital Dissolution Agreement as granting Wife a proportionate share of Husband’s retirement based on the duration of the marriage and not based upon the thirty years he was in the military. We affirm.