Caroline Smith v. Mark Smith
M2001-00689-COA-R3-CV
Authoring Judge: Chancellor Irvin H. Kilcrease, Jr.
Trial Court Judge: Barry R. Brown
This is an appeal by appellant Caroline Elizabeth Smith from an order of the trial court which provided that the custody of the minor children of Caroline Elizabeth Smith and Mark O. Smith shall remain in the custody of Mark O. Smith. We affirm the trial court.

Caroline Smith v. Mark Smith
M2001-00689-COA-R3-CV
Authoring Judge: Chancellor Irvin H. Kilcrease, Jr.
Trial Court Judge: Barry R. Brown
This is an appeal by appellant Caroline Elizabeth Smith from an order of the trial court which provided that the custody of the minor children of Caroline Elizabeth Smith and Mark O. Smith shall remain in the custody of Mark O. Smith. We affirm the trial court.

State of Tennessee v. Jeffrey K. Shaw
M2001-00563-CCA-R3-CD
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge J. Randall Wyatt, Jr.

On February 5, 2001, the Defendant, Jeffery K. Shaw, entered a plea of guilty to felony weapon possession. Pursuant to Rule 37 (b)(1)(i) of the Tennessee Rules of Criminal Procedure, the Defendant sought to reserve a certified question of law to be reviewed by this Court. In this appeal, the Defendant contends that the trial court erred in denying his motion to suppress evidence and statements obtained as a result of the Defendant's arrest in the home of a third party. We affirm the judgment of the trial court.

State of Tennessee v. Alfonzo E. Anderson
W2000-00737-CCA-R3-CO
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Chris B. Craft

Alfonzo E. Anderson appeals the Shelby County Criminal Court's denial of his petition for the writ of habeas corpus. He claims that the indictment charging him with first degree felony murder is insufficient to allege the offense because it does not allege a factual basis for the underlying felony, attempted aggravated robbery. Because we agree with the lower court that the indictment sufficiently alleges the crime of first degree felony murder, we affirm.

Gregory W. Clements v. State of Tennessee
W2001-00739-CCA-R3-PC
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge James C. Beasley, Jr.

The petitioner, Gregory W. Clements, pled guilty in the Shelby County Criminal Court to one count of second degree murder and was sentenced as a Range II offender to thirty-five years incarceration in the Tennessee Department of Correction. The petitioner filed a petition for post-conviction relief, alleging that his sentence is illegal. The post-conviction court dismissed the petition, due to the expiration of the applicable statute of limitations. The petitioner now appeals. Upon review of the record and the parties’ briefs, we affirm the judgment of the post-conviction court.

State of Tennessee v. Perdido Cook
W2001-00381-CCA-R3-CD
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge Bernie Weinman

The Appellant, Perdido Cook, was convicted by a Shelby County jury of especially aggravated robbery, aggravated robbery, and attempted aggravated robbery. The trial court sentenced Cook to serve 25 years for the especially aggravated robbery conviction, 8 years for the aggravated robbery conviction, and 3 years for the attempted aggravated robbery conviction. All sentences were to be served concurrently. On appeal, Cook raises the following issues for our review: (1) Whether the evidence is sufficient to support the convictions; and (2) whether the imposition of the maximum sentence of 25 years for especially aggravated robbery is justified in view of the trial court's misapplication of certain enhancement factors. After review, we find no reversible error and affirm the judgment of the trial court.

State of Tennessee v. Jarrett Sherrard Sibert
M2000-02807-CCA-R3-CD
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge Charles D. Haston, Sr.

The Defendant, Jarrett Sherrard Sibert, was convicted of attempted first degree murder by a Warren County jury. After a sentencing hearing on January 14, 2000, the trial court sentenced the Defendant as a Range I standard offender to 24 years in the Department of Correction. On appeal, the Defendant argues that (1) the evidence was insufficient to support the jury's verdict of guilty beyond a reasonable doubt and (2) the trial court improperly sentenced the Defendant. We affirm the judgment of the trial court.

VP Buildings, Inc., v. Polygon Group, Inc., et al.
M2001-00613-COA-R3-CV
Authoring Judge: Judge Patricia J. Cottrell
Trial Court Judge: Chancellor Carol A. Catalano

In this appeal the sole shareholder and director of Polygon appeals the trial court's decision to hold her personally liable for a debt owed by Polygon. The corporate officer contracted to do business in Tennessee, knowing that Polygon was not qualified to do business here and knowing that Polygon had not filed an annual report in three years, which made it subject to administrative dissolution. After suit was filed against Polygon, the shareholder encumbered all of the corporation's assets. Further, after she was sued personally, she filed to have Polygon's charter retroactively reinstated. The trial court held that the shareholder abused the corporate form, that the corporate entity should be disregarded and that the sole shareholder and director should be held personally liable. We affirm the decision of the trial court.

James Burks v. Williams Typesetting, Inc.
E2000-02532-WC-R3-CV
Authoring Judge: John K. Byers, Sr. J.
Trial Court Judge: Jeffery Franklin Stewart, Chancellor
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated _ 5-6- 225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The trial court found the employee had sustained a twenty-five percent permanent partial disability, based on the medical impairment of five percent, to her left arm. The trial court further held that Barker v. Home-Crest Corp., 85 S.W.2d 373 (Tenn. 1991) controlled and because March 24, 1998, was the last day the employee was able to work, the plaintiff insurer was liable for the employee's workers' compensation award. We affirm the judgment of the trial court. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Chancery Court Affirmed JOHN K. BYERS, SR. J., in which WILLIAM M. BARKER, J., and WILLIAM H. INMAN, SR. J., joined. Robert J. Uhorchuk, Chattanooga, Tennessee for the appellant, Travelers Insurance Company. Sarah C. Hardison Reisner and James L. May, Jr., Nashville, for the appellees, Lisa Fuson, et al. MEMORANDUM OPINION Review of the findings of fact made by the trial court is de novo upon the record of the trial court, accompanied by a presumption of the correctness of the findings, unless the preponderance of the evidence is otherwise. TENN. CODE ANN. _ 5-6-225(e)(2). Stone v. City of McMinnville, 896 S.W.2d 548, 55 (Tenn. 1995). The application of this standard requires this Court to weigh in more depth the factual findings and conclusions of the trial courts in workers' compensation cases. See Corcoran v. Foster Auto GMC, Inc., 746 S.W.2d 452, 456 (Tenn. 1988). Facts The employee, age thirty-six at the time of trial, has a high school diploma and some college credits. She served in the Army for six years as a health inspector before being honorably discharged. During her Army service, she learned basic computer skills in the Lotus and WordPerfect programs. She was employed by the parties' insured, Dunlap Industries, from November of 1993 until January of 1999. She sustained a gradually occurring injury_carpal tunnel syndrome_while employed with Dunlap Industries. During the time relevant to this case, Dunlap Industries was insured by two insurers. The defendant provided workers' compensation coverage to the employer from September 11, 1996 until September 11, 1997. The plaintiff provided coverage beginning September 12, 1997. The plaintiff's injury resulted in the filing of three claims and three First Report of Injury forms before surgery was performed on March 26, 1998. After both the first claim, filed on October 23, 1996, and second claim, filed on May 1, 1997, the employee was released by her treating physician and returned to work. The final claim was filed on September 5, 1997. The defendant insurer authorized surgery after the final claim and then denied coverage on April 23, 1998. The defendant insurer claims the date of injury was the last day the employee was able to work, that date being March 24, 1998_the date of surgery, which was outside of the workers' compensation policy issued by the company to cover claims for work-related injuries. The trial court found the employee had sustained a twenty-five percent permanent partial disability, based on the medical impairment of five percent, to her left arm. The trial court further held that Barker v. Home-Crest Corp., 85 S.W.2d 373 (Tenn. 1991) controlled and because March 24, 1998, was the last day the employee was able to work, the plaintiff insurer was liable for the employee's workers' compensation award. Medical Evidence Dr. John P. Nash, an orthopedic surgeon, testified by deposition. Dr. Nash first saw the employee on December 1, 1996, approximately six weeks after she began having symptoms. She complained of pain in her left elbow with occasional tingling in her small finger that began after she lifted a box at work. Dr. Nash diagnosed left lateral epicondylitis or "tennis elbow." He returned her to work on January31, 1997, after her symptoms improved. The employee was next seen in June of 1997 for additional elbow complaints. The employee was treated conservatively on several occasions for what Dr. Nash referred to as "flare ups." According to Dr. Nash, surgery was -2-

Kerry Joe Bradley v. State of Tennessee
M2000-02222-CCA-R3-PC
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Robert L. Jones

The petitioner appeals from the denial of his post-conviction relief petition. The trial court found that the petitioner failed to prove by clear and convincing evidence that his guilty plea was not voluntary or that he received ineffective assistance of counsel. The judgment from the trial court is affirmed.

State of Tennessee v. John D. Sneed
M2001-00591-CCA-R3-CD
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Judge Cheryl A. Blackburn

The defendant pled guilty in 1998 to delivery of over 0.5 grams of cocaine for an agreed fine of $2,000 and an eight-year sentence, as a Range I standard offender, with the manner of service of the sentence to be determined by the trial court. Following a sentencing hearing, the trial court denied alternative sentencing. In this appeal, the defendant contests this denial. After review, we affirm.

In The Matter Of: Allan Russell Burke v. Maureen Jo Burke
M2000-01111-COA-R3-CV
Authoring Judge: Judge David Farmer

This Court now amends its previous Opinion in the above styled case with respect to the following issues: (1) the date of Mr. Burke’s summer visitation; (2) the Judgment shall be amended to include a statement of  standard parenting orders pursuant to T.C.A. 36-6-101(a)(3); and (3) the assessment of costs for appeal.

State of Tennessee v. Livergest Mickens
W2000-03010-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Joseph B. Dailey

Defendant, Livergest Mickens, was convicted by a Shelby County jury of aggravated burglary, and theft of property under five hundred dollars in value. On appeal, Defendant challenges the sufficiency of the evidence to sustain the convictions. After a review of the record and applicable law, we affirm the judgment of the trial court.

State of Tennessee v. Paul C. Michael
W2000-03015-CCA-R3-CD
Authoring Judge: Judge Jerry L. Smith
Trial Court Judge: Judge Joseph H. Walker, III

On October 19, 2000, the appellant, Paul C. Michael, was convicted by a McNairy County jury of violating the provisions of Tennessee Code Annotated Section 55-10-616, a section of the Motor Vehicle Habitual Offender Act. On November 22, 2000, he was sentenced to two years incarceration suspended after service of ninety days. He brings this appeal claiming his conviction is invalid because the order declaring him an habitual motor vehicle offender was not properly entered pursuant to Tennessee Rule Civil Procedure 58. We hold that an individual must utilize the provisions of Tennessee Rule of Civil Procedure 60.02 to challenge an order declaring the individual an habitual motor vehicle offender. Because the appellant herein did not mount his attack on such an order pursuant to Rule 60.02 the appellant cannot obtain relief. Moreover, the unreasonable amount of time the appellant waited to mount his challenge after having actual notice of the order declaring him an habitual motor vehicle offender precludes relief pursuant to Rule 60.02. The judgment of the trial court is affirmed.

Kenneth W. Nesbitt v. State of Tennessee
W2001-00394-CCA-R3-CD
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge C. Creed Mcginley

The Defendant, Kenneth W. Nesbitt, was convicted of two counts of selling cocaine by a Carroll County jury and sentenced to eight years on each count to be served concurrently. He appealed his convictions and this Court affirmed the convictions and the sentences, and our supreme court denied the Defendant's application for permission to appeal. The Defendant then filed a petition for post-conviction relief alleging ineffective assistance of counsel. The trial court dismissed the petition. The Defendant now appeals to this Court alleging that the trial court erred in denying him relief. We affirm the judgment of the trial court.

State of Tennessee v. Jeffery Bowers
W2001-01374-CCA-R3-CD
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge Jon Kerry Blackwood

The Defendant, Jeffery Bowers, was convicted in the Circuit Court of Fayette County of speeding . He now appeals to this Court alleging that his conviction should be reversed due to a conflict of interest in the Somerville City Court. We affirm the judgment of the trial court.

Thomas A. Street v. Howard Carlton, Warden, and State of Tennessee
E2001-00998-CCA-R3-CO
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Lynn W. Brown

The petitioner was convicted of first degree murder for a killing that occurred in 1985, and was unsuccessful both in a direct appeal of his conviction and a petition for post-conviction relief. Subsequently, he filed a petition for writ of habeas corpus, the denial of which is the basis for this appeal. In that petition, he claimed, as he had in his earlier petition for post-conviction relief, that his conviction should be reversed because the jurors were allowed to separate during the trial. Based upon our review, we affirm the post-conviction court's dismissal of the petition.

State of Tennessee v. Charles Wilburn Taylor
E2001-01617-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge E. Eugene Eblen

A petition to declare the defendant a motor vehicle habitual offender was filed and served on him. He did not appear at the hearing, where a default judgment was entered. Subsequently, he filed a motion to set aside the default order, arguing that the service of the order on him was inadequate. The trial court denied the motion, and we affirm that denial.

State of Tennessee v. Jerry Ray Davidson
M1998-00105-CCA-R3-CD
Authoring Judge: Judge Jerry L. Smith
Trial Court Judge: Judge Allen W. Wallace

The appellant, Jerry Ray Davidson, was found guilty by a jury of premeditated first degree murder and aggravated kidnapping. Thereafter, the jury sentenced the appellant to death based upon the finding of three aggravating circumstances: the appellant had previously been convicted of one or more violent felonies; the murders were knowingly committed while the appellant was engaged in committing a felony, i.e., aggravated kidnapping; and the appellant knowingly mutilated the body of the victim after death. The appellant received a consecutive twenty year sentence for the kidnapping conviction. On appeal, the appellant raises the following issues:

(1) Whether the trial erred when it denied the appellant's motions to change venue, strike the venire and grant additional peremptory challenges; (2) Whether the evidence is sufficient to sustain the convictions; (3) Whether a witness for the prosecution should have been allowed to offer opinion testimony; (4) Whether the trial court correctly instructed the jury about the unanimity of its verdict; (5) Whether the jury's verdict is proper;  (6) Whether the prosecutor has unlimited discretion in seeking the death penalty; (7) Whether the death penalty is imposed in a discriminatory manner; and (8) Whether Tennessee courts employ an adequate proportionality review. Having thoroughly considered all of these issues and having fully reviewed the appellate record in this case, we affirm the convictions and the sentence of death imposed for first degree murder.

State of Tennessee v. Joseph S. Hayes
E2001-00868-CCA-R3-CD
Authoring Judge: Judge J. Curwood Witt, Jr.
Trial Court Judge: Judge R. Jerry Beck

The defendant, Joseph S. Hayes, appeals the Sullivan County Criminal Court's denial of alternative sentencing in the defendant's three Class B misdemeanor convictions of assault. Finding no reversible error, we affirm.

State of Tennessee v. Gerald Powers - Dissenting
W1999-02348-SC-DDT-DD
Authoring Judge: Justice William M. Barker
Trial Court Judge: Judge Joseph B. Dailey

At the outset, I recognize that the facts and evidence surrounding the heinous murder of Shannon Sanderson are certainly indicative of guilt on the part of the defendant, Gerald Powers. Indeed, even without the disputed testimony of the defendant’s wife, the evidence implicating Mr. Powers is convincing, if not overwhelming. However, I am unwilling to affirm a criminal conviction based upon a flawed interpretation of the marital communication privilege as codified in Tennessee Code Annotated section 24-1-201(b) (Supp. 1998). In my opinion, the statutory marital communications privilege codified at Tennessee Code Annotated section 24-1-201(b) should have resulted in the exclusion of the defendant’s wife’s testimony relating to the defendant’s confidential communications. Because I am of the opinion that reversible error occurred in this respect, I respectfully dissent.

Jason Michon v. State of Tennessee
M2001-00343-CCA-R3-PC
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Judge Cheryl A. Blackburn

Petitioner appeals the summary dismissal of his petition for post-conviction relief after the trial court found it was barred by the statute of limitations. We conclude that due process considerations may have tolled the running of the statute of limitations if trial counsel misled petitioner concerning his intention to pursue an appeal. We, therefore, reverse and remand for an evidentiary hearing on the issue of tolling.

Anthony Hunter v. State of Tennessee
M2000-03228-CCA-R3-PC
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Judge J. Randall Wyatt, Jr.

This is an appeal from the denial of post-conviction relief. The petitioner contends he was deprived of the effective assistance of counsel which led to an involuntary guilty plea. We affirm the judgment of the trial court.

Darlette I. Billingsley v. Janelle C. Waggener
M2001-01015-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Judge J. Russ Heldman

This is an automobile accident case where each party claims she had the green light when she entered the intersection where the accident occurred. In addition to the depositions of the parties, Defendant submitted expert testimony to the effect that Plaintiff's version of the accident was physically impossible while Defendant's version was not. The Trial Court granted summary judgment to Defendant after concluding, as a matter of law, that Plaintiff's negligence was at least 50% under comparative fault principles. We conclude that genuine issues of material fact exist and vacate the judgment of the Trial Court.

Shelia J. Troy v. William Troy
M1998-00989-COA-R3-CV
Authoring Judge: Judge William C. Koch, Jr.
Trial Court Judge: Judge Jim T. Hamilton

This appeal involves a dispute between a woman and her former in-laws regarding the title to a tract of property in Prospect, Tennessee and the in-laws' accounting for $35,000 held for the benefit of the woman and her former husband. When she filed for divorce in the Chancery Court for Giles County, the woman also named her in-laws as defendants and alleged that they had misappropriated marital assets and breached a contract to convey the property in Prospect, Tennessee. After agreeing to an irreconcilable differences divorce, the woman proceeded with her claims against her former in-laws. Following a bench trial, the trial court held that the in-laws had accounted for all the funds being held for the benefit of the woman and her former husband and that the in-laws owned the disputed property. On this appeal, the woman takes issue with both of these conclusions. We have determined that the trial court properly found that the property belonged to the in-laws. However, we have also determined that the in-laws did not properly account for $892.15 of the funds they were holding. Accordingly, we modify the final order to award the woman a $892.15 judgment against her former in-laws.