State of Tennessee v. Donald Keel
W2003-00638-CCA-R3-CD
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge Clayburn L. Peeples

The Appellant, Donald Keel, was convicted in the Gibson County Circuit Court of aggravated
perjury, felon in possession of a handgun, and assault. Keel’s sentence for aggravated perjury was imposed consecutively to his concurrent sentences for unlawful weapon possession and assault. On appeal, he raises two issues for our review: (1) whether the evidence is sufficient to support his conviction for aggravated perjury and (2) whether consecutive sentencing is proper. After review of the record, we affirm the conviction and subsequent sentencing decision.

State of Tennessee v. Billy Gene Rich
W2003-01495-CCA-R3-CD
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge Roger A. Page

The Appellant, Billy Gene Rich, was convicted of driving under the influence (DUI), second offense, and was sentenced to serve eleven months and twenty-nine days in jail. On appeal, Rich argues that: (1) the evidence is insufficient to support his conviction and (2) his sentence is excessive. After review, the conviction and sentence are affirmed.

Kevin Demers v. Walter Whittenburg
M2003-00184-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Judge John H. Gasaway, III

This case involves two Rule 12.02(6) motions to dismiss converted to motions for summary judgment through the filing of additional affidavits with Plaintiff’s response to these motions. Although the trial court dismissed all claims against Defendants for failure to state a claim under Rule 12.02(6), we must review the evidence using a Rule 56 motion for summary judgment standard. Plaintiff alleged numerous business torts, conspiracy, intentional infliction of emotional distress, and defamation in this action against Defendants. However, Plaintiff failed to provide any evidence from which a jury could return a verdict in favor of Plaintiff on any count alleged. The trial court also granted Rule 11 sanctions against Plaintiff. The judgment of the trial court is affirmed, but on summary judgment grounds.

Kevin Demers v. Walter Whittenburg - Concurring
M2003-00184-COA-R3-CV
Authoring Judge: Presiding Judge William C. Koch, Jr.
Trial Court Judge: Judge John H. Gasaway, III

While I concur with the decision to affirm the trial court’s dismissal of Mr. Demers’s claims in this case, I write separately to point out that the outcome may very well have been different had we employed the standard customarily used to review orders granting a Tenn. R. Civ. P. 12.02(6) motion to dismiss. However, by using affidavits to oppose the motion to dismiss, Mr. Demers has succeeded in converting the Tenn. R. Civ. P. 12.02(6) motion to a motion for summary  Thus, rather than reviewing Mr. Demers’s amended complaint to determine whether it states claims upon which relief can be granted, we need only determine whether, based on the undisputed facts, the defendants have demonstrated that they are entitled to a judgment as a matter of law.

Cheryl O'Brien v. Rheem Manufacturing Company
M2003-00530-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Judge John H. Gasaway, III

In this appeal an unsuccessful plaintiff seeks review of a jury verdict approved by the trial court, in favor of the defendant manufacturer. We affirm.

Dana Friedenstab, et al., v. Martha Short - Dissenting
M2003-00603-COA-R3-CV
Authoring Judge: Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Donald P. Harris

The majority has determined that summary judgment was proper because the plaintiff failed to establish that the defendant owed her a duty and that the plaintiff was responsible for no less that 50% of her own injuries. I respectfully disagree.

Dana Friedenstab v. Martha Short
M2003-00603-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Judge Donald P. Harris

The plaintiffs bring this appeal from the trial court’s summary judgment in favor of the defendant. We affirm.

State of Tennessee, et al., v. Jamie Burnette, et al.
M2003-01742-COA-R3-PT
Authoring Judge: Judge William B. Cain
Trial Court Judge: Judge Charles F. Crawford

This appeal involves the juvenile court's termination of parental rights to two children, A.L.B. (d.o.b. 10/25/96), and B.L.B. (d.o.b. 12/01/98). Appellant argues that the trial court's findings regarding abandonment of the children, persistent conditions, and the children's best interests are unsupported by clear and convincing evidence. We affirm the trial court.

John McVoy v. Mary Ann Parks
M2003-01841-COA-R3-CV
Authoring Judge: Presiding Judge William C. Koch, Jr.
Trial Court Judge: Chancellor Tom E. Gray

This appeal involves an order of protection. After several public confrontations with his former girlfriend, the petitioner sought an order of protection from the Chancery Court for Sumner County. The trial court granted the order of protection, and the former girlfriend appealed to this court. Because the evidence does not preponderate against the trial court's decision, we affirm.

State of Tennessee v. Anthony Carter
E2003-02172-CCA-R3-CD
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Judge Rebecca J. Stern

The defendant, Anthony Lebron Carter, appeals the revocation of his probation. We affirm the judgment of the trial court.

Matthew Moates v. State of Tennessee
E2003-01926-CCA-R3-PC
Authoring Judge: Judge Joseph M. Tipton
Trial Court Judge: Judge Carroll L. Ross

The petitioner, Matthew L. Moates, appeals the Monroe County Criminal Court's denial of his petition for post-conviction relief from his conviction for aggravated robbery and resulting sixteen-year sentence. He claims (1) that he received the ineffective assistance of counsel because his attorney failed to call witnesses to testify at trial about the length of his hair at the time of the robbery, (2) that the state improperly struck an African-American juror from the jury, (3) that he is entitled to a new trial because he was not present during a conference in which the state and his trial attorney discussed the African-American juror's dismissal, and (4) that a state witness improperly communicated with a juror during his trial. We affirm the trial court's denial of the petition.

Carla Lynn Downing v. Joseph Wade Downing
W2003-00561-COA-R3-CV
Authoring Judge: Presiding Judge W. Frank Crawford
Trial Court Judge: Chancellor Joe C. Morris

This is an appeal from the trial court’s order, which increases Appellant/Father’s child support obligation to an amount consistent with the Tennessee Child Support Guidelines. Appellant contends that the trial court erred in failing to consider his extensive visitation with the child in declining to deviate downward from the guidelines. We affirm.

Author R. Turner v. State of Tennessee
W2003-02889-COA-R3-CV
Authoring Judge: Judge Alan E. Highers
Trial Court Judge: Nancy C. Miller-Herron, Commissioner

This case involves a claim for negligence brought by Appellant, an inmate in the custody of the Tennessee Department of Correction. Appellant filed a claim with the Tennessee Division of Claims Administration, which was subsequently transferred to the Tennessee Claims Commission. The Commission determined the claim was time barred, and Appellant appealed this decision to this Court. We reverse and remand for further proceedings.
 

State of Tennessee v. Timerell Nelson
W2003-01474-CCA-R3-CD
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge John P. Colton, Jr.

The Appellant, Timerell Nelson, appeals the verdict of a Shelby County jury finding him guilty of first degree felony murder. On appeal, Nelson raises the single issue of whether the evidence is sufficient to support his conviction. After review, we find the evidence to be more than sufficient. Accordingly, the judgment of conviction is affirmed.

State of Tennessee v. Darrell Sanderlin
W2003-01546-CCA-R3-CD
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge Clayburn L. Peeples

The Appellant, Darrell Sanderlin, appeals from the sentencing decision of the Haywood County Circuit Court. Sanderlin pled guilty to one count of child abuse of his six-year-old son, a class D felony. Pursuant to a negotiated plea agreement, he was sentenced as a Range I, standard offender, with the length and manner of service to be determined by the trial court. Following a sentencing hearing, the trial court imposed a sentence of four years incarceration. On appeal, Sanderlin argues that the trial court erred by ordering a sentence of total confinement rather than a less restrictive alternative. After review, the sentencing decision is affirmed.

Sharon D. Keller v. National Healthcare Corporation
2003-01527-WC-R3-CV
Authoring Judge: Roger E. Thayer, Sp. J.
Trial Court Judge: W. Frank Brown III, Chancellor
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. The trial court awarded the employee 42 percent permanent partial disability as a result of a rotator cuff tear injury. The employer contends the evidence preponderates against the award. Other issues relate to the award of temporary total benefits, proper notice and the statute of limitations. The judgment is affirmed. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Chancery Court is Affirmed ROGER E. THAYER, SP. J., in which WILLIAM M. BARKER, J., and H. DAVID CATE, SP. J., joined. Paul Campbell III, Chattanooga, Tennessee, for Appellant, National Healthcare Corporation. John Mark Griffin, Chattanooga, Tennessee, for Appellee, Sharon D. Keller. MEMORANDUM OPINION The employer, National Healthcare Corporation, has appealed from the trial court's action in awarding the employee, Sharon D. Keller, 42 percent permanent partial disability to the body as a whole. Factual Background The employee, a fifty-one year old high school graduate, was working as a medical receptionist during March 19991 when she testified she injured her right shoulder while moving a box of medical records. She described the incident as causing a "stabbing horrible pain" in her shoulder. She said she immediately told office Manager Tina Cline, who was also working in the general area. Ms. Cline admitted being told of the incident and said she told Ms. Keller to not do anymore lifting. She stated she did not fill out an accident report but probably should have. When pressed by counsel as to why she did not fill out a report, she responded that the office was in the process of closing, records were being packed and sent to another location, and it was just a chaotic time and she just never got around to doing it. She also testified that her supervisor, Janet Avery, was aware of Ms. Keller having hurt her shoulder while working. Ms. Cline left this employment during May 1999. The employee sought medical treatment from Dr. Lester F. Littell, a physician she had been seeing for other problems. An MRI report indicated she had a right rotator cuff tear and surgery was performed on May 2, 1999. After recovering from surgery, she worked on a part- time basis for Dr. Littell from August 1, 2 until December 2, when he relocated his practice. She also worked some for a Dr. Driskin, who took over Dr. Littell's practice. Since then and up to the time of the trial, she has worked as a sitter for different patients. Witness Janet Avery testified she was the regional contract account manager for the employer and that her first knowledge of a work-related injury was not until August 1999 when she talked with Ms. Keller by phone. Dr. Lester F. Littell, an orthopedic surgeon, was the only medical witness and testified by deposition. He stated Ms. Keller had been under his care for some period of time and that he had operated on both of her knees due to a congenital condition. He repaired the rotator cuff tear on her right shoulder during May 1999 and felt by history she had sustained the injury while lifting or moving the box of medical records. He was of the opinion she had a 7 percent medical impairment to the body as a whole and said her recovery period would be from three to six months. His records were filed as an exhibit to his deposition and they indicated she reached maximum medical improvement during November 1999. Other statements in the records indicated she was totally disabled from April 13, 1999 to August 27, 1999. Restrictions on reaching and lifting were imposed. Issues on Appeal The employer has raised a number of questions on appeal which we find narrows down to the following issues. The employer contends (1) the employee failed to give proper notice of the injury, (2) the statute of limitations had run on the claim, (3) the court was in error in awarding temporary total disability payments, and (4) the evidence preponderates against the award of 42 1 The time of the incident was in dispute. The employee originally stated the incident happened during February 1999 but later amended the complaint to allege the injury occurred during mid-March 1999. -2-

Clifford Michael Johnson v. Nissan North America, Inc.
M2003-01165-COA-R10-CV
Authoring Judge: Judge Frank Clement, Jr.
Trial Court Judge: Judge J.S. Steve Daniel

Former employee of Nissan North America, Inc. filed this action against Nissan alleging retaliatory discharge following his filing of a workers' compensation claim. A discovery dispute ensued wherein Nissan objected claiming the requests were not relevant and that it would violate the Americans with Disabilities Act if it provided the discovery. The trial court modified the discovery and ordered Nissan to: 1) list every employee terminated between August 2000 and January 2002 and the reason for the termination; 2) identify which of these employees filed workers' compensation claims or received workers' compensation benefits within one year preceding their respective termination; and 3) identify each employee that Nissan or its agents either conducted surveillance on or requested that surveillance be conducted on between August 2000 and January 2002. We reverse, finding that the plaintiff failed to make a compelling showing of relevance and failed to establish that the value of the discovery sought, which pertained to information contained in the personnel and medical records of current and former employees of Nissan, outweighed the privacy interests of those individuals who were not parties to this action.

Estate of Lisa Duncan, by and through Edward Human, Personal Representative v. State of Tennessee
M2003-01105-COA-R3-CV
Authoring Judge: Judge W. Frank Crawford
Trial Court Judge: W.R. Baker, Commissioner

This case involves the death of a passenger who was involved in a high speed police chase. The Tennessee Claims Commission granted summary judgment to the State and passenger's personal representative appealed, primarily on the ground that the Claims Commission erred in granting summary judgment prior to an opportunity to take the discovery deposition of the involved highway patrolman. We affirm.

State of Tennessee v. Herbert Russell Johnson, Alias
E2003-02580-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Mary Beth Leibowitz

The defendant, Herbert Russell Johnson, appeals the revocation of his probation, arguing that the trial court erred in failing to consider further alternatives to incarceration before revoking his probation and ordering the reinstatement of his original sentence. Because the record reveals there was substantial evidence in support of the trial court's decision, we affirm the judgment of the trial court.

State of Tennessee v. Brian Keith Jackson
E2003-00606-CCA-R3-CD
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge Rebecca J. Stern

The Defendant, Brian Keith Jackson, was found guilty by a jury of second degree murder. In this direct appeal, he argues (1) that the trial court erred by refusing to play a pornographic video tape for the jury after it was admitted into evidence, and (2) that the evidence is legally insufficient to sustain his conviction. Although the trial court did err by not playing the video in front of the jury, the error was harmless. Furthermore, because the evidence is sufficient to sustain the defendant's conviction, we affirm the judgment of the trial court.

State of Tennessee v. Daniel Wade Wilson
E2003-02070-CCA-R3-CD
Authoring Judge: Judge Joseph M. Tipton
Trial Court Judge: Judge Phyllis H. Miller

The defendant, Daniel Wade Wilson, appeals as of right from his convictions by a jury in the Sullivan County Criminal Court for first degree felony murder and especially aggravated robbery, a Class A felony. The trial court sentenced the defendant to consecutive sentences of life in prison for the first degree felony murder conviction and twenty-three years for the especially aggravated robbery conviction. He contends that the evidence is insufficient to convict him of felony murder or especially aggravated robbery and that the trial court erred by ordering consecutive sentences. We affirm the judgments of the trial court.

Randall C. Hagy v. Commisssioner, Tennessee Department of Labor and Workforce Development and Tennessee Distribution, Inc.
E2003-01685-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Judge John S. McLellan, III

Employee was discharged from employment for refusing to follow orders. The Commissioner denied employee unemployment benefits, and employee appealed to the Court which affirmed the ruling of the Commissioner. On appeal to this Court, we affirm.

Dr. Kenneth F. Freels, v. Joseph C. Taylor & Associates, Inc. and Howard G. Hogan, Successor Receiver for Joseph C. Taylor & Associates, Inc.
E2003-01788-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Chancellor Daryl R. Fansler

Plaintiffs sought recovery of cashier's check on theory of bailment or resulting or constructive trust. From an adverse Judgment by the Chancellor, plaintiffs appealed. We affirm.

Jerry Rogers v. David Stanley Davis and Vanetta Davis
E2003-01240-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Chancellor Jerri S. Bryant

The trial court awarded plaintiff judgment for rents on property occupied by defendants, but refused judgment for defendants for improvements made by them to plaintiff's property. On appeal, we reverse and award defendants judgment for improvements made to the property and modify plaintiff's judgment for the rental value of land.

Sedley Alley v. State of Tennessee
W2004-01204-CCA-R3-PD
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge W. Otis Higgs, Jr.

In 1985, Petitioner, Sedley Alley, was convicted of the crimes of aggravated rape, kidnapping, and first degree murder. The jury fixed his punishment at death for first degree murder and the trial court imposed consecutive forty-year sentences for kidnapping and aggravated rape. Petitioner Alley filed a petition to compel testing of evidence under the Post-Conviction DNA Analysis Act of 2001. The post-conviction court denied the petition, and Petitioner Alley timely appealed. This Court expedited review of this matter. Upon review of the record and the responses by both parties, we affirm the judgment of the post-conviction court.