| Steven Robert Williams v. Margaret Simpson Williams
W2001-00101-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Originating Judge:D'Army Bailey |
Shelby County | Court of Appeals | 05/22/02 | |
| John C. Flowers v. Joseph E. Turner And Connie Turner
W2001-01429-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Originating Judge:Roy B. Morgan, Jr. |
Madison County | Court of Appeals | 05/21/02 | |
| Pioneer Subdivision Homeowners vs. Professional Counseling
W2001-03053-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Originating Judge:Ron E. Harmon |
Dyer County | Court of Appeals | 05/21/02 | |
| Pioneer Subdivision Homeowners vs. Professional Counseling
W2001-03053-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Originating Judge:Ron E. Harmon |
Dyer County | Court of Appeals | 05/21/02 | |
| Thomas Nelson vs. Robin Nelson
W2001-01515-COA-R3-CV
In this divorce case, Husband appeals the type and amount of alimony awarded Wife, the award to Wife of his military Survivor Benefit Plan, the calculation of his retirement pay and the award to Wife of her attorney's fees. We have determined, based on this record, that the judgment be modified to reduce the amount of alimony in futuro, but otherwise affirm.
Authoring Judge: Judge David R. Farmer
Originating Judge:George R. Ellis |
Gibson County | Court of Appeals | 05/21/02 | |
| Huntington Eldridge vs. Deborah Eldridge
W2000-00730-COA-R3-CV
Husband filed for divorce alleging inappropriate marital conduct and irreconcilable differences. Wife countersued on the same grounds. After a lengthy trial, the court awarded Husband the divorce. Wife appeals several aspects of the court's decision, including the distribution and classification of the parties' property, child support, and alimony. Wife also contends that the court was biased against her and created an appearance of impropriety. Husband also raises issues on appeal. We affirm in part, reverse in part, and remand the case for further proceedings.
Authoring Judge: Judge David R. Farmer
Originating Judge:Karen R. Williams |
Shelby County | Court of Appeals | 05/21/02 | |
| State of Tennessee v. Terry Norris
W2000-00707-CCA-R3-CD
A Shelby County jury found the Defendant guilty of second degree murder, and the trial court sentenced him to twenty-one years incarceration. The Defendant now appeals his conviction, arguing that he received ineffective assistance of counsel at trial because (1) his counsel failed to file a motion to suppress his confession based upon a violation of the Defendant's Fourth Amendment rights; and (2) his counsel argued a theory of defense to the jury that was contrary to the Defendant's wishes and testimony. We conclude that the Defendant's trial counsel were not ineffective for failing to base the motion to suppress the Defendant's confession on a violation of the Defendant's Fourth Amendment rights. We further conclude that although the Defendant's counsel did not comply with the Defendant's wish to proceed at trial under a theory of self-defense, any error in this regard was harmless in light of the record as a whole. We therefore affirm the judgment of the trial court.
Authoring Judge: Judge Robert W. Wedemeyer
Originating Judge:Judge James C. Beasley, Jr. |
Shelby County | Court of Criminal Appeals | 05/21/02 | |
| Decatur County vs. Vulcan Materials
W2001-00858-COA-R3-CV
This case involves the constitutionality of a mineral severance tax increase. In 1984, the Tennessee General Assembly enacted a public act of statewide application authorizing counties to collect a mineral severance tax, directing that the proceeds of the tax be deposited in the county road fund. In 1987, the General Assembly passed a private act allowing Decatur County to impose a mineral severance tax, but allocating the revenue from the tax to the county's general fund. Decatur County adopted the tax and the proceeds went to the county's general fund. In 1994, the General Assembly amended the private act to provide for an increase in the mineral severance tax. Decatur County adopted the increased rate, and then filed suit against a company that severed minerals from the earth in that county, to collect the mineral severance tax at the increased rate. The mineral company, and three other mineral companies, resisted payment of the tax, arguing inter alia that the tax was unconstitutional under Article XI, Section 8 of the Tennessee Constitution, the equal protection clause, because the proceeds were allocated to the county's general fund, rather than to the county road fund, as directed in the public act authorizing the tax. After a trial, the trial court held that the mineral companies were estopped from arguing that the tax was unconstitutional, and, in the alternative, that the tax was constitutional because the mineral companies failed to show that there was not a rational basis for the allocation of the funds to the county's general fund rather than to the road fund. Both parties appealed. We affirm in part and reverse in part, finding that the mineral companies were not required to pay the tax in protest, that the mineral companies have standing to sue and are not estopped from contesting the constitutionality of the tax, and finally that the tax is constitutional because there is a rational basis for allocating the revenue to the county's general fund rather than to its road fund.
Authoring Judge: Judge Holly M. Kirby
Originating Judge:Ron E. Harmon |
Decatur County | Court of Appeals | 05/21/02 | |
| Orlando Residence, Ltd. v. Nashville Lodging
M2001-00648-COA-R3-CV
This is an action for damages for the fraudulent conveyance of a Nashville hotel to defeat the rights of a creditor of the original owner. After a trial and two prior appeals, the Chancery Court of Davidson County tried the case on the merits again in August of 2000. The jury returned a verdict in favor of the plaintiffs for $797,615. The defendants assert on appeal that the statute of limitations barred the claim, that the trial court erred in miscalculating the defendants' claim for restitution, and that there is no evidence in the record to support a finding that the transfer was fraudulent. We reverse the lower court's ruling that as a matter of law the statute of limitations had not run. In all other respects we affirm the lower court's judgment.
Authoring Judge: Judge Ben H. Cantrell
Originating Judge:Ellen Hobbs Lyle |
Davidson County | Court of Appeals | 05/21/02 | |
| State of Tennessee v. Tracy Farrell
E2001-01199-CCA-R3-CD
The defendant, Tracy Farrell, appeals from his eleven drug convictions rendered by a McMinn County Criminal Court jury. On appeal he challenges the trial court's failure to grant a severance of offenses. We have determined that the trial court did not abuse its discretion in denying the motion to sever offenses, and we affirm the conviction judgments.
Authoring Judge: Judge James Curwood Witt, Jr.
Originating Judge:Judge Carroll L. Ross |
McMinn County | Court of Criminal Appeals | 05/21/02 | |
| State of Tennessee v. Ricky T. Hughes
M2000-01846-CCA-MR3-CD
A Davidson County Criminal Court jury convicted the defendant, Ricky T. Hughes, of facilitation of first degree felony murder, a Class A felony, and especially aggravated robbery, a Class A felony. The trial court sentenced him to consecutive sentences of twenty-five years as a standard offender for the facilitation conviction and twenty-five years as a violent offender for the aggravated robbery conviction. The defendant appeals, claiming that (1) the evidence is insufficient to support his
Authoring Judge: Judge Joseph M. Tipton
Originating Judge:Judge Cheryl A. Blackburn |
Davidson County | Court of Criminal Appeals | 05/21/02 | |
| State of Tennessee v. Steven Dalton
M2001-00756-CCA-R3-CD
A Hickman County Criminal Court jury found the defendant, Steven Dalton, guilty of voluntary manslaughter for the killing of a fellow inmate. The trial court imposed a six-year sentence to be served consecutively to the defendant's existing life sentence. The defendant appeals his conviction, claiming: (1) the trial court erred in allowing the State to impeach him with his prior felony murder conviction and (2) the evidence was insufficient to support his conviction for voluntary manslaughter. We affirm the judgment of the trial court.
Authoring Judge: Judge Alan E. Glenn
Originating Judge:Judge Donald P. Harris |
Hickman County | Court of Criminal Appeals | 05/21/02 | |
| CH-01-0200-2;
CH-01-0200-2;
Originating Judge:Kenny W. Armstrong |
Shelby County | Court of Appeals | 05/21/02 | |
| State of Tennessee v. Steven L. Rauhuff
E2001-00543-CCA-R3-CD
The defendant was indicted for operation of a motor vehicle after being declared an habitual offender. Following a bench trial, he was convicted of the indicted offense. In this appeal, the defendant challenges the sufficiency of the evidence. We affirm.
Authoring Judge: Judge Joe G. Riley
Originating Judge:Judge D. Kelly Thomas, Jr. |
Blount County | Court of Criminal Appeals | 05/20/02 | |
| State of Tennessee v. Charles H. Martin
E2001-00565-CCA-R3-CD
The Defendant, Charles H. Martin, was convicted by a jury of aggravated assault. Following a sentencing hearing, the trial court sentenced him as a Range I offender to six years in the Department of Correction. On appeal, the Defendant contends that the trial court erred in denying his motion to strike handwritten portions of the indictment. We affirm the judgment of the trial court.
Authoring Judge: Judge David H. Welles
Originating Judge:Judge Rex H. Ogle |
Sevier County | Court of Criminal Appeals | 05/20/02 | |
| State of Tennessee v. Scotty DeWayne Robinson
E2001-02342-CCA-R3-CD
The defendant, Scotty Dewayne Robinson, pled guilty to Class D felony theft pursuant to a plea agreement recommending the imposition of a three-year sentence to be served consecutively to a federal sentence. The trial court accepted the defendant's plea of guilty and imposed the recommended sentence. In this appeal, the defendant argues the trial court improperly sentenced him. We conclude the defendant has no appeal as of right of his sentence since it was a part of a plea agreement in which the defendant waived the right to appeal. Accordingly, the appeal is dismissed.
Authoring Judge: Judge Joe G. Riley
Originating Judge:Judge Mary Beth Leibowitz |
Knox County | Court of Criminal Appeals | 05/20/02 | |
| State of Tennessee v. James L. McCurry
E2001-01900-CCA-R3-CD
The Appellant, James L. McCurry, was convicted by a Roane County jury of one count of premeditated first degree murder and was sentenced to life imprisonment. On appeal, McCurry raises two issues for our review: (1) Whether the evidence presented at trial was sufficient to support a conviction for premeditated first degree murder; and (2) whether the trial court erred by failing to exercise its role as the thirteenth juror. After review, we find no error and affirm the judgment of the trial court.
Authoring Judge: Judge David G. Hayes
Originating Judge:Judge E. Eugene Eblen |
Roane County | Court of Criminal Appeals | 05/20/02 | |
| Joan Loreva Kreth v. Timothy Kerwin Kreth
W2002-00983-COA-R10-CV
Authoring Judge: Judge W. Frank Crawford
Originating Judge:D'Army Bailey |
Shelby County | Court of Appeals | 05/20/02 | |
| State of Tennessee v. Nathan Scott Ramagos
M2001-01873-CCA-R3-CD
The defendant pled guilty to one count of sexual battery, a Class E felony; one count of indecent exposure, a Class A misdemeanor; and one count of reckless aggravated assault, a Class D felony. Denying his request for probation, the trial court sentenced him as a Range I, standard offender to the maximum sentence for each offense, for an effective sentence of four years. In a timely appeal to this court, the defendant challenges his sentences, arguing that the trial court erred in its application of enhancement factors, and in failing to find any factors in mitigation. Based upon our review, we conclude that two of the three enhancement factors found applicable by the trial court are unsupported by the record, but that the remaining enhancement factor, the defendant's prior history of criminal conduct, is entitled to great weight. We further conclude that mitigating factor (1), the defendant's actions did not cause or threaten serious bodily injury, applies to the defendant's convictions for sexual battery and indecent exposure, but that it carries very little, if any, weight in mitigation. Accordingly, we affirm the trial court's denial of the defendant's request for probation, and the sentences imposed in this case.
Authoring Judge: Judge Alan E. Glenn
Originating Judge:Judge Seth W. Norman |
Davidson County | Court of Criminal Appeals | 05/20/02 | |
| Lisa Gregory v. Bradley County Sheriff's Department
E2001-01393-WC-R3-CV
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel in accordance with Tenn. Code Ann. _ 5-6-225(e) for hearing and reporting of findings of fact and conclusions of law. The employee appeals the denial of worker's compensation benefits on the basis that the trial court used an incorrect standard of proof in evaluating the medical evidence. We affirm the judgment of the trial court. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Bradley County Chancery Court is Affirmed. HOWELL N. PEOPLES, SP. J., in which WILLIAM M. BARKER., JUSTICE, and JOHN K. BYERS, SR. J., joined. Bert Bates, Cleveland, Tennessee, for the Appellant, Lisa Gregory. William A. Lockett and Michael A. Kent, Cleary and Lockett, Chattanooga, Tennessee, for the Appellee, Bradley County Sheriff's Department. 1 MEMORANDUM OPINION Facts On December 5, 1999, Lisa Gregory was employed as a correctional officer by the Bradley County Sheriff's Department. She observed an inmate hanging inside a holding tank and ran into the cell to assist. She lifted the inmate and felt something pop in her left wrist. That evening she went to the emergency room and was advised to follow up with an orthopedic surgeon. She went to Dr. Robert Beasley who advised her to wear a wrist brace for two weeks. Ms. Gregory returned to Dr. Beasley on December 27, 1999 and she had improved considerably, and had just about returned to her baseline condition. She was returned to her regular work duties with some restrictions. She was asked to return in six weeks, but did not return until May 9, 2. Ms. Gregory acknowledged that she had returned to work in her same job when her condition seemed to worsen in May, 2. On May 9, 2, Dr. Beasley took x-rays that revealed that her condition had changed and that the lunate bone in her wrist was deteriorating, which Dr. Beasley believed was a result of the progression of her Kienbock's disease. Dr. Beasley had treated Ms. Gregory for a work-related injury on July 25, 1992 when she fell down some steps and landed on her left wrist. The fall caused Ms. Gregory to develop Kienbock's disease in which the blood supply to the lunate bone is lost. Dr. Beasley testified that this condition is progressive and, over time, causes the lunate bone to hurt, fragment and ultimately collapse. In January 1993, Dr. Beasley had performed an intercarpal fusion in order to transfer some of the load away from the lunate bone. He assigned a 2 percent impairment rating to the left arm for the 1992 injury and she was awarded a judgment for worker's compensation benefits for 3 percent disability to the left arm on December 13, 1994. 2
Authoring Judge: Howell N. Peoples, Special Judge
Originating Judge:Jerri Bryant, Chancellor |
Knox County | Workers Compensation Panel | 05/20/02 | |
| Ruthann Marie Rhoady v. Insurance Company of
M2001-00614-WC-R3-CV
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) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. In this appeal, the appellant insists the evidence preponderates against the trial court's findings (1) that the employee gave timely written notice of her injury and (2) that the injury occurred in the course and scope of employment. As discussed below, the panel has concluded the judgment should be affirmed. Tenn. Code Ann. _ 5-6-225(e) (21) Appeal as of Right; Judgment of the General Sessions Court Affirmed JOE C. LOSER, JR., SP. J., in which ADOLPHO A. BIRCH, JR., J., and JAMES WEATHERFORD, SR. J., joined. Mary Melinda Little, McMinnville, Tennessee, for the appellants, Insurance Company of the State of Pennsylvania and Bridgestone/Firestone, Inc. Barry H. Medley, McMinnville, Tennessee, for the appellee, Ruthann Marie Rhoady. MEMORANDUM OPINION The employee or claimant, Rhoady, is thirty-three years old with a tenth grade education, a general education diploma and experience as a laborer. She works for Bridgestone/Firestone, Inc. in tire production. She testified that on December 14, 1998, she began her shift at 7: p.m. During the early hours of the next day, she felt a sharp, low back pain while bending down to tape a heavy tire. She testified further that she first thought she had a kidney injury, but that the doctor ruled that out in January 1999. She continued working until January 13, 1999, when she filed a written report of the injury to the employer. Two board certified orthopedic surgeons examined the claimant. Dr. Robert P. Landsberg diagnosed her injury as a "broad based central disc herniation with intermittent L-5 nerve root irritation" causally related to her injury at work. Dr C. R. Dyer agreed. Both doctors found the claimant to be truthful. Dr. Arthur Cushman, a neurosurgeon, agreed as to causation, but did not comment one way or the other on the claimant's truthfulness. The claimant gave all of the doctors the above history. Our examination of the record reveals no medical evidence and no direct evidence that the injury occurred other than as the claimant and the doctors have said it occurred. The trial court, upon considering all the evidence and arguments of counsel, awarded workers' compensation benefits as provided by law. Appellate review of findings of fact is de novo upon the record of the trial court accompanied by a presumption of correctness of the findings, unless the preponderance of the evidence is otherwise. Tenn. Code Ann. _ 5-6- 225(e)(2). This tribunal is not bound by the trial court's findings but instead conducts an independent examination of the record to determine where the preponderance lies. Galloway v. Memphis Drum Serv., 822 S.W.2d 584, 586 (Tenn. 1991). Where the trial judge has seen and heard the witnesses, especially if issues of credibility and weight to be given oral testimony are involved, considerable deference must be accorded those circumstances on review, because it is the trial court that had the opportunity to observe the witnesses' demeanor and to hear the in-court testimony. Long v. Tri-Con Ind., Ltd., 996 S.W.2d 173, 178 (Tenn. 1999). The appellate tribunal, however, is as well situated to gauge the weight, worth and significance of deposition testimony as the trial judge. Walker v. Saturn Corp., 986 S.W.2d 24, 27 (Tenn. 1998). The appellant first contends the claimant failed to give timely written notice of her injury. Immediately upon the occurrence of an injury, or as soon thereafter as is reasonable and practicable, an injured employee must, unless the employer has actual knowledge of the accident, give written notice of the injury to his employer. Benefits are not recoverable from the date of the accident to the giving of such notice, and no benefits are recoverable unless such written notice is given within 3 days after the injurious occurrence, unless the injured worker has a reasonable excuse for the failure to give the required notice. The notice may be given by the employee or his representative. Tenn. Code Ann. _ 5-6-21. Whether or not the excuse offered by an injured worker for failure to give timely written notice is sufficient depends on the particular facts and circumstances of each case. A. C. Lawrence Leather Co. v. Britt, 22 Tenn. 444, 454, 414 S.W.2d 83, 834 (1967). The presence or absence of prejudice to the employer is a proper consideration. McCaleb v. Saturn Corp., 91 S.W.2d 412, 415 (Tenn. 1995). Generally, the beginning date for computing notice is the date on which the effects of the -2-
Authoring Judge: Joe C. Loser, Jr., Sp. J.
Originating Judge:Larry Ross, Judge |
Warren County | Workers Compensation Panel | 05/17/02 | |
| Owen Franklin v. State of Tennessee
E2001-00610-WC-R3-CV
This case was heard in the Eastern Division of the State Claims Commission. The Commissioner who heard the case found the plaintiff had failed to prove that he received an injury to his respiratory system and allergies as a result of exposure to chemicals in the print ship at East Tennessee State University where he was employed. We affirm the judgment.
Authoring Judge: John K. Byers, Sr.. J.
Originating Judge:Michael Lacy, Claims Commissioner |
Franklin County | Workers Compensation Panel | 05/17/02 | |
| Tammie Rose Simons v. Findlay Industries, Inc.
M2000-02956-WC-R3-CV
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel in accordance with Tenn. Code Ann. _ 5-6-225(e) for hearing and reporting of findings of fact and conclusions of law. The employer appeals an award of permanent partial disability benefits on the basis that the employee suffered no permanent medical impairment. We affirm the judgment of the trial court. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Warren County Chancery Court is Affirmed. HOWELL N. PEOPLES, SP. J., in which ADOLPHO A. BIRCH, JR., JUSTICE, and WILLIAM H. INMAN, SR. J., joined. Patrick A. Ruth and K. Melissa Howard, Ruth, Howard, Tate & Sowell, Nashville, Tennessee, for the Appellant, Findlay Industries, Inc. Barry H. Medley, Farrar, Holliman & Medley, McMinnville, Tennessee, for the Appellee, Tammie Rose Simons 1 MEMORANDUM OPINION Facts On October 19, 1999, Tammy Rose Simons ("Ms. Simons") filed a Complaint seeking workers' compensation benefits for injuries to her shoulders, arms, hands and fingers of each hand caused by repetitive and/or frequent use or her shoulders, arms, hands and fingers arising out of and in the scope of her employment with Findlay Industries, Inc. ("Findlay"). Ms. Simons, age 41, completed the 12th grade and worked for Findlay for approximately 13 years. She has no special skills or special training and has never served in a supervisory capacity. Before 1996, she had no prior injury to, or problems with, her shoulders, wrists and hands. She reported to her supervisor that she was having problems with her hands and wrists. She was seen by a series of doctors, two of whom testified by deposition in this case. Dr. Robert Clendenin testified that he first saw Ms. Simons on June 1, 1999 with complaints of bilateral wrist and arm pain commencing around 1997. She reported that due to a low back injury, she was off work from November 1998 to March 1999 and her arm symptoms disappeared. Within a couple of days after she returned to work, she again developed pain over the dorsal aspect of both wrists with some radiation into the shoulders. Dr. Clendenin examined her and found no objective signs of injury. He concluded that she had tendonitis of the wrist extensor muscles, and recommended that she take prednisone and engage in a physical therapy program to reduce any inflammation in the tendons in her hands. He recommended to her employer that she be placed on light duty with no repetitive gripping or grasping, pushing or pulling over ten pounds. Dr. Clendenin saw her again on June 25, 1999, and her wrist examination was normal with good motion. He performed a nerve conduction test of the median nerve that was normal. He returned Ms. Simons to regular duty on June 27, 1999, but indicated she might need some type of rheumatologic treatment. Dr. Susan Jacobi, a rheumatologist, reported to Dr. Clendenin that Ms. Simons had episodic joint pain, which Dr. Jacobi concluded was tendonitis, and recommended Ms. Simons use Celebrex when she had flare-ups in pain. Dr. Clendenin last saw Ms. Simons on December 3, 1999 at which time she had no complaints of pain, tested normal in both wrists and had normal sensation. Dr. Clendenin testified that Ms. Simons should find a job that required less repetitive motion of her arms, but assessed her at a zero impairment rating based on the American Medical Association Guides to the Evaluation of Permanent Impairment. He testified that the AMA Guides provide that "a patient with wrist or hand pain or other symptoms may not have evidence of a permanent impairment. Alteration of the patient's daily activities or work-related tasks may reduce the symptoms. Such an individual should not be considered permanently impaired under the Guide's criteria." Dr. Clendenin testified that Ms. Simons was having no shoulder-related symptoms when he saw her, but his office notes introduced as exhibits at his deposition reflect that on June 1, 1999, she complained of pain in her back, hands, and shoulders. Ms. Simons was seen by Dr. Francisca Lytle, a board certified orthopedic surgeon on March 15, 2 for evaluation. Dr. Lytle diagnosed Ms. Simons as having recurring tenosynovitis in the wrists and hands based on history. She also found impingement testing on the shoulders to be positive and diagnosed impingement syndrome. She testified that the 2
Authoring Judge: Howell N. Peoples, Special Judge
Originating Judge:Charles D. Haston, Sr., Chancellor |
Warren County | Workers Compensation Panel | 05/17/02 | |
| State of Tennessee v. Jerry Allen Ketchum
E2001-02008-CCA-R3-CD
The Defendant entered a plea of nolo contendere to attempted aggravated sexual battery. Pursuant to his plea agreement, the Defendant received a four-year sentence, with the manner of service of the sentence to be determined by the trial court. Following a sentencing hearing, the trial court ordered that the Defendant serve the four-year sentence in the Tennessee Department of Correction. The Defendant now appeals, arguing that he should have received some form of alternative sentencing. Concluding that the record supports the trial court's denial of alternative sentencing, we affirm the judgment of the trial court.
Authoring Judge: Judge Robert W. Wedemeyer
Originating Judge:Judge R. Jerry Beck |
Sullivan County | Court of Criminal Appeals | 05/17/02 | |
| State of Tennessee v. James D. Newland
E2001-01055-CCA-R3-CD
The defendant, James D. Newland, appeals from the Sullivan County Criminal Court's revoking his probation that was ordered for his guilty plea to rape. The defendant contends that the trial court abused its discretion in revoking his probation and sentencing him to confinement. We affirm the judgment of the trial court.
Authoring Judge: Judge Joseph M. Tipton
Originating Judge:Judge Phyllis H. Miller |
Sullivan County | Court of Criminal Appeals | 05/17/02 |
