SUPREME COURT OPINIONS

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State of Tennessee v. Edward Lorenzo Samuels
M1999-01821-SC-R11-CD
Authoring Judge: Chief Justice E. Riley Anderson
Trial Court Judge: Judge Cheryl A. Blackburn

After revoking the defendant's community corrections sentence, the trial court increased the length of the defendant's sentence from six to eight years and ordered that the sentence be served consecutively to a sentence in an unrelated case. Although the Court of Criminal Appeals affirmed the trial court's judgment, we granted the defendant's application for permission to appeal and remanded the case to the Court of Criminal Appeals for consideration of our decision in State v. Taylor, 992 S.W.2d 941 (Tenn. 1999). The Court of Criminal Appeals again affirmed the trial court's judgment. After considering the record, we conclude that upon revoking the community corrections sentence, the trial court held a proper sentencing hearing and did not err either in increasing the length of the defendant's sentence or in ordering that the sentence be served consecutively. We therefore affirm the judgment of the Court of Criminal Appeals.

State of Tennessee v. Kai ("Guy") Nielsen and Betty Nielsen
E1998-00525-SC-R11-CD
Authoring Judge: Justice E. Riley Anderson
Trial Court Judge: Judge Arden L. Hill

We granted this appeal to determine whether a superseding indictment issued after the statute of limitations has elapsed must allege that the prosecution was timely commenced within the statutory period. After the trial court refused to dismiss the indictment, the defendants were tried and convicted of theft of property over $10,000. The Court of Criminal Appeals affirmed the convictions. After reviewing the record and applicable authority, we conclude that the superseding indictment, which was issued after the statute of limitations had elapsed, did not have to allege facts showing that the prosecution was timely commenced with a prior presentment.

Bobby R. George v. Building Materials Corp. of America, et al.
M1999-00449-SC-WCM-CV
Authoring Judge: Justice Janice M. Holder
Trial Court Judge: Judge Carol L. Soloman

In this workers' compensation case, the trial court awarded Bobby R. George 90% permanent partial disability for loss of hearing in both ears. Mr. George's employer, Building Materials Corporation of America d/b/a GAF Materials Corporation ("GAF"), filed a post-judgment motion for leave to amend its answer to allege a statute of limitations defense. The trial court denied the motion. The Special Workers' Compensation Appeals Panel ("the Panel") reversed the trial court's denial of the motion to amend the answer and remanded the case for further proceedings on the statute of limitations defense. The Panel also reduced the award to 50% permanent partial disability should the statute of limitations defense be unsuccessful on remand. We disagree with the Panel's recommendation and affirm the trial court's judgment in all respects.

Anthony Keith Eldridge vs. Julia Edity Eldridge
E1999-02583-SC-R11-CV
Authoring Judge: Justice Janice M. Holder
Trial Court Judge: Chancellor Richard E. Ladd

We granted review of this child visitation case to determine whether the trial court abused its discretion in ordering unrestricted overnight visitation with the mother. The Court of Appeals held that the trial court had abused its discretion and imposed restrictions prohibiting the presence of the mother's lesbian partner during overnight visitation. We hold that the record does not support a finding of an abuse of discretion. Accordingly, we reverse the judgment of the Court of Appeals.

Cecil v. Crowson, Clerk
M2000-03060-SC-RL-RL

John David Terry vs. State
M1999-00191-SC-DDT-DD
Authoring Judge: Justice William M. Barker
Trial Court Judge: J. Randall Wyatt, Jr.

John David Terry vs. State
M1999-00191-SC-DDT-DD
Authoring Judge: Justice William M. Barker
Trial Court Judge: J. Randall Wyatt, Jr.

Robert Spurlock, et al vs. Sumner County, et al
M1999-01486-SC-R23-CQ
Authoring Judge: Justice Adolpho A. Birch, Jr.
Trial Court Judge: Robert L. Echols
This case comes to us on a question of law certified from the United States District Court for the Middle District of Tennessee. The question for our resolution is: "Does a sheriff, when acting in a law enforcement capacity, [act] as a state [official] or [as a] county official under Tennessee law?" We accept certification and answer that a sheriff acts as a county official under Tennessee law.

Charlotte Brown, et al vs. Birman Managed Care, Inc., et al
M1999-02551-SC-R11-CV
Authoring Judge: Justice Frank F. Drowota, III
Trial Court Judge: John A. Turnbull
The plaintiff, individually and on behalf of her daughter, sued her former husband and his employers for fraud and civil conspiracy to defraud. She alleges that these defendants successfully carried out a plan to reduce the amount of her former husband's child support payments. Part of the plaintiff's conspiracy claim is based on the testimony of her former husband in a child support hearing in which he is alleged to have falsely stated his income. The defendants moved for summary judgment on two grounds: (1) the quality of the plaintiff's evidence and (2) the defense of "testimonial privilege," which grants a witness immunity from subsequent civil liability based on testimony he gave in a judicial proceeding. The trial court granted the defendants' motion. The Court of Appeals, in an opinion authored by Judge Cantrell, reversed, holding that the defendants were not entitled to summary judgment and that the former husband's testimony comes within the "larger conspiracy" exception to the testimonial privilege. We affirm both holdings of the Court of Appeals.

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Mcarthur Davis v. Komatsu America Industries
M2000-01373-SC-R-23-CQ

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Dorothy G. Mackie, Widow of James V. Mackie v. Young Sales Corporation
M1998-00590-SC-WCM-CV
Authoring Judge: Per Curiam

Young Sales Corporation, through counsel, has filed a petition to rehear this Court’s opinion released on March 1, 2001. We have reviewed the arguments raised in the petition and conclude that they are without merit. Accordingly, it is ORDERED that the petition to rehear is denied.

State of Tennessee v. Guy William Rush
E1998-00592-SC-R11-CD
Authoring Judge: Justice Adolpho A. Birch, Jr.
Trial Court Judge: Judge R. Jerry Beck

Guy William Rush was indicted and tried for one count of attempt to commit second degree murder and one count of aggravated assault. On the attempted second degree murder count, the trial court instructed the jury on a number of lesser-included offenses, including attempted voluntary manslaughter; intentional or knowing aggravated assault accompanied by serious bodily injury; reckless aggravated assault accompanied by serious bodily injury; and assault accompanied by bodily injury. The jury convicted Rush of the lesser-included offense of reckless aggravated assault. Rush appealed, challenging the trial court's instructions on lesser-included offenses, and the Court of Criminal Appeals affirmed. Applying the lesser-included offense test established in State v. Burns, 6 S.W.3d 453 (Tenn. 1999), we conclude that neither reckless aggravated assault nor felony reckless endangerment are lesser-included offenses of attempted second degree murder. We conclude, however, that the offense of misdemeanor reckless endangerment is a lesser-included offense of attempted second degree murder and that the trial court erred in failing to so instruct the jury. Accordingly, we reverse the judgment of the Court of Criminal Appeals and remand the cause for a new trial in accordance with this opinion.

Dexter L. Williams vs. State
E1999-00871-SC-R11-PC
Authoring Judge: Justice William M. Barker
Trial Court Judge: W. Dale Young

Dexter L. Williams vs. State
E1999-00871-SC-R11-PC
Authoring Judge: Justice William M. Barker
Trial Court Judge: D. Kelly Thomas, Jr.

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Kenneth Weston vs. State
E1998-02620-SC-R11-PC
Authoring Judge: Justice Adolpho A. Birch, Jr.
Trial Court Judge: Richard R. Baumgartner
We granted review in this cause to determine whether the trial court exceeded the authority granted upon remand when it permitted Kenneth Lee Weston to amend his post-conviction petition and when it ruled on the amended petition. Because we find that the trial court was without authority to allow the amendment, we vacate all orders pertaining to the amended petition and remand the cause to the Court of Criminal Appeals for a first-tier review of the trial court's denial of the original unamended petition for post-conviction relief.

Robert Fahey vs. Fabien Eldridge & Eldridge Auto Sales, Inc.
M1999-00500-SC-R11-CV
Authoring Judge: Justice William M. Barker
Trial Court Judge: Clara W. Byrd
The primary issue presented in this case is whether the Court of Appeals erred in finding that the defendants waived all issues on appeal by failing to specifically state these issues in their motions for a new trial as required by Tennessee Rule of Appellate Procedure 3(e). The defendants were found liable by a jury for the assault and battery of the plaintiff, and they were ordered to pay compensatory and punitive damages in the amount of $1.75 million. The defendants filed motions for a new trial, which were denied by the trial court, in part, because the alleged errors were not specifically enumerated. On appeal, the Court of Appeals found that the alleged errors were not stated with sufficient specificity in the motions so as to preserve them for appeal, and it dismissed all issues before it. The defendants then requested permission to appeal to this Court. We hold that the defendants' motions for a new trial did set forth several issues for review in compliance with Rule 3(e), and we remand this case to the Court of Appeals for a determination of these issues on their merits.

State of Tennessee v. Robert L. Mallard
1999-00003-SC-R11-CD
Trial Court Judge: J. S. Daniel

State vs. Gerald H. Shaffer
E1998-00106-SC-R11-CD
Authoring Judge: Justice Adolpho A. Birch, Jr.
Trial Court Judge: Richard R. Baumgartner
The Criminal Court for Knox County found that Gerald H. Shaffer had violated the terms of his probation and, on this finding, revoked it. Shaffer appealed and contended that the trial court did not have the authority to revoke probation and that the trial court abused its discretion by basing revocation on new grounds alleged in an amendment to the revocation warrant. The Court of Criminal Appeals affirmed and held that the trial court had the authority to revoke probation and did not abuse its discretion. Because we conclude that the trial court had the authority to revoke Shaffer's probation and did not abuse its discretion in basing the probation revocation on additional grounds alleged in the amendment, we affirm the judgment of the Court of Criminal Appeals.

State vs. Torrey Frazier
E2000-01364-CCA-R3-CD
Authoring Judge: Judge Jerry Smith
Trial Court Judge: E. Eugene Eblen
A Roane County grand jury indicted the defendant on one count of first degree premeditated murder. Following a jury trial, he stood convicted of second degree murder. For this offense he received a twenty-two year sentence as a violent offender. After unsuccessfully pursuing a motion for a new trial, the defendant brings the present appeal to this Court raising four issues. More specifically, he avers that (1) the evidence is insufficient to support his conviction; (2) the trial court erred in admitting into evidence a tech-nine weapon not associated with the offense; (3) the trial court erred in permitting the State to question a defense witness concerning a pending statutory rape charge; and (4) the trial court erred by sentencing the defendant to twenty-two years. Upon review of these issues, we find that all lack merit or constitute harmless error. We, thus, affirm the conviction and sentence.

Robert Cunningham, Jr., et al,. vs. Shelton Security Service, Inc., et al.
M1998-00023-SC-WCM-CV
Authoring Judge: Chief Justice E. Riley Anderson
Trial Court Judge: Chancellor Carol McCoy

In this workers’ compensation case, the estate of the employee, Robert W. Cunningham, Sr., has appealed from a chancery court judgment dismissing a claim for death benefits filed against the employer, Shelton Security Service, Inc. The employee, who worked as a security guard for the employer, died of heart failure while performing his duties at a store. At the close of the employee’s proof, the trial court granted the employer’s motion to dismiss on the basis that the emotional stress experienced by the employee the night of his death was not extraordinary or unusual for a security guard. The Special Workers’ Compensation Appeals Panel, upon reference for findings of fact and conclusions of law, found that there was sufficient evidence of causation to warrant a trial and, thus, reversed the trial court’s dismissal. Thereafter, the employer filed a motion for full Court review of the Panel’s decision. We granted the motion for review to consider whether the trial court erred in dismissing the employee’s claim on the basis that his heart failure did not arise out of the employment because it was not caused by a mental or emotional stimulus of an unusual or abnormal nature, beyond what is typically encountered by one in his occupation. After carefully examining the record and considering the relevant authorities, we agree with the Panel and reverse the trial court’s judgment. Tenn. Code Ann. § 50-6-225(e); Findings of Fact and Conclusions of Law by the Special Workers’ Compensation Panel Affirmed; Judgment of the Trial Court Reversed and Case RemandedE. RILEY ANDERSON, C.J.,

Dorothy G. Mackie, et al. v. Young Sales Corporation, et al.
M1998-00590-SC-WCM-CV
Authoring Judge: Chief Justice E. Riley Anderson
Trial Court Judge: Judge Thomas W. Brothers

We granted review in this workers' compensation case to determine whether the trial court erred in awarding temporary total benefits and death benefits based on the maximum weekly wage where the employee did not earn any wages in the 52 weeks prior to being diagnosed with malignant mesothelioma. On appeal, the Special Workers' Compensation Appeals Panel concluded that the trial court erred in awarding benefits based on the maximum weekly wage because the employee was voluntarily retired at the time of his diagnosis, and that benefits were to be based on the minimum weekly wage. After reviewing the record and applicable authority, we conclude that an employee's voluntary retirement does not preclude workers' compensation benefits for an injury arising out of and in the course of employment and that the trial court properly awarded benefits based on the maximum weekly rate under the facts of this case.