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.

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. David Hester
E2003-01507-CCA-R3-CD
Authoring Judge: Presiding Judge Gary R Wade
Trial Court Judge: Judge Richard R. Vance

The defendant, David Hester, pled guilty to statutory rape. The trial court imposed a one-year sentence to be served on supervised probation and directed community service. In this appeal, he asserts that the trial court erred by denying judicial diversion. The judgment of the trial court is affirmed.

David Hartsell v. State of Tennessee
E2003-03080-CCA-R3-PC
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Lynn W. Brown

The petitioner, David Johnson Hartsell, appeals the order of the Circuit Court for Washington County dismissing his post-conviction relief petition. The State has filed a motion requesting that this Court affirm the trial court's denial of relief pursuant to Rule 20, Rules of the Court of Criminal Appeals. The petition fails to present a cognizable claim for relief. Accordingly, the State's motion is granted and the judgment of the trial court is affirmed.

Robert S. Shipley v. Ryder Truck Rentals, Inc.
E2003-01346-WC-R3-CV
Authoring Judge: H. David Cate, Sp. J.
Trial Court Judge: Richard Ladd, Chancellor By Designation
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 its findings of fact and conclusions of law. In this appeal the employer complains that the trial court was in error (1) by allowing the surprise live testimony of Dr. C. M. Salekin contrary to the agreement of the parties and the court's prior orders; and (2) in awarding the employee 1 percent permanent disability to the left eye when the employee was legally blind in the left eye prior to the alleged injury and plaintiff failed to prove any loss of use. We disagree and affirm the trial court on these two issues. The employer also complains that the trial court erred in awarding prejudgment interest. We agree and reverse. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Chancery Court Affirmed in Part, Reversed in Part and Remanded H. DAVID CATE, SP. J., in which WILLIAM M. BARKER, J., and ROGER E. THAYER, Sp. J., joined. Daniel C. Todd, Nashville, Tennessee, for Appellant, Ryder Truck Rental, Inc. David H. Dunaway, LaFollette, Tennessee, for Appellee, Robert S. Shipley MEMORANDUM OPINION I. Factual and Procedural Background The employee, Robert S. Shipley, was fifty-eight years old at the time of trial. He went to the eighth grade in school. He drove a truck, farmed and became a long-haul truck driver. He has been employed as a long-haul truck driver during substantially all of his employed years. He became employed by Ryder Truck Rental, Inc., the employer, in 1998. The employer leased its trucks to Universal Furniture, and the employee began hauling furniture in March 1998. In May 1999, the employee sustained a detached retina of the left eye, while unloading furniture. There was no workers' compensation claim made for this injury. In June 1999, the retina of his left eye again detached. It was reattached surgically on July 3, 1999, by Dr. John Hoskins, an ophthalmologist. On January 1, 2, Dr. Hoskins did a follow-up procedure on the left eye, amounting to a removal of silicone oil from the eye. In February 2, he had another left eye recurrent retinal detachment, which was repaired surgically on February 28, 2. After this surgery on July 24, 2, the vision in his left eye tested at 2/4, which was considered to be legally blind.1 Although he was driving a truck for the employer, the lack of vision would have prohibited him from having a commercial driver's license. On August 1, 2, the employee was driving a truck for the employer when the truck was struck by another vehicle traveling the wrong way on Interstate 75 near Chattanooga, Tennessee. The employee observed the injuries of the other driver and watched as he died. He sustained a head injury on the left-hand side of the door and his eye started quivering. The employee was seen at the Cleveland Community Hospital emergency room the day of the accident. While there, approximately four hours after the accident, the employee had a diastolic blood pressure reading of 113. A normal diastolic reading would be below 85 or 8, depending on the doctor. He has suffered from hypertension for several years. The employee worked approximately three weeks in September 2, but has not worked since. Since the accident the employee has been treated by the following physicians: Dr. Luis C. Pannocchia, family practice doctor; Dr. John C. Hoskins, ophthalmologist; and Dr. Kelley Walker, a psychiatrist. He has been evaluated by the following: Dr. Ben Bursten, a psychiatrist; Dr. C.M. Salekin, a neurologist; and Dr. Norman E. Hankins, a vocational evaluator. The vision in his left eye has decreased since the accident from 2/4 and reading the larger "E" on the chart to counting fingers at two feet and not being able to read the larger "E" on the chart. After this cause was commenced, a scheduling order was entered on May 29, 22, which provided that the parties would disclose their Rule 26 experts and statements and no expert would 1 The employee had a detached retina of the right eye but he has normal vision in that eye. -2-

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.

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.

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.

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.

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.

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, 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.

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.

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.

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. 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.

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.

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.

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.

State of Tennessee v. Ronald Killebrew
W2003-02008-CCA-R3-CD
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge Chris B. Craft

The Appellant, Ronald Killebrew, was convicted of being a felon in possession of a handgun, a class E felony, following a jury trial. The trial court sentenced Killebrew, as a Range II multiple offender, to three years and six months in the Shelby County Workhouse. On appeal, Killebrew raises the single issue of whether the evidence was sufficient to support the verdict. After review of the record, we affirm the conviction.

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.

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.

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.