W2002-01746-COA-R3-CV
W2002-01746-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: William B. Acree

Medical Center v. Allstate Insurance Company V.
W2002-01439-COA-R9-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Kay S. Robilio

Geraldine Miles vs. John Walsh
W2002-00234-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Robert L. Childers
This appeal arises from a medical malpractice action. Sitting without a jury, the trial court found plaintiffs had failed to prove defendants' conduct fell below the standard of care. The trial court accordingly entered judgment for defendants. We affirm.

State of Tennessee v. Mary Jean Mayrand
E2001-01051-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge J. Curtis Smith

A Rhea County jury convicted the Defendant of first offense DUI, and the trial court sentenced her to forty-eight hours' confinement. In this direct appeal, the Defendant argues (1) that insufficient evidence was presented to support her conviction; (2) that the trial court erred by denying her challenge to one of the jurors during voir dire; (3) that the trial court erred by denying her pre-trial motion to dismiss the indictments; (4) that the trial court erred by allowing the arresting officer to testify as to the contents of an alcoholic beverage; and (5) that her constitutional rights were violated when the State failed to provide her with a "legible" copy of a videotape taken of her at jail following her arrest. We conclude that sufficient evidence was presented to support the Defendant's conviction and that the trial court erred by allowing the arresting officer to testify as to the contents of an alcoholic beverage, but that the error was harmless. We further conclude that the Defendant has waived all other issues on appeal. We therefore affirm the judgment of the trial court.

CH-00-1102-3
CH-00-1102-3
Trial Court Judge: D. J. Alissandratos

CH-01-1559-3
CH-01-1559-3
Trial Court Judge: D. J. Alissandratos

Cinderella Osborne vs. Mountain Life Ins.
E2002-01023-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: John K. Wilson
This appeal raises a question of coverage under a policy of credit life insurance. The Plaintiff, Cinderella Ferrell Osborne, brought this action against Mountain Life Insurance Company ("Mountain Life"), alleging that it wrongfully denied her claim under a credit life insurance policy on the life of her deceased husband, Kenneth Scott Osborne. The Trial Court granted Mountain Life's motion for summary judgment, finding that Mr. Osborne died within six months after the effective date of coverage, from a disease for which he received medical treatment within six months of the effective date of the insurance. The Court held that these facts triggered a limitation of liability provision in the policy, which limited Ms. Osborne's recovery to the premium paid. We reverse the judgment of the Trial Court.

State of Tennessee v. Billy F. Johnson
M2001-00330-CCA-R3-CD
Authoring Judge: Judge Joseph M. Tipton
Trial Court Judge: Judge Seth W. Norman

A Davidson County Criminal Court jury convicted the defendant, Billy F. Johnson, of first degree premeditated and felony murder and theft of property valued more than five hundred dollars but less than one thousand dollars, a Class E felony. The trial court merged the murder convictions and sentenced the defendant to life in the Department of Correction (DOC). For the theft conviction, the trial court sentenced the defendant to two years to be served concurrently to the life sentence. The defendant appeals, claiming (1) that the evidence is insufficient to support his premeditated murder and theft convictions; (2) that the trial court erred by denying his motion to suppress his confessions; and (3) that the trial court erred by refusing to order the prosecutor to stop misstating the facts during closing argument. We affirm the judgments of the trial court.

Jennifer Norman v. Steven Norman
M2001-01281-COA-R3-CV
Authoring Judge: Judge William C. Koch, Jr.
Trial Court Judge: Muriel Robinson
This appeal is the culmination of a lengthy and bitter child support battle. When the parties were divorced in 1994 by the Law Court for Washington County, the wife was awarded custody of their child, and the husband was required to pay child support. The court also approved the parties' marital dissolution agreement that, among other things, provided for annual child support adjustments and obligated the husband to provide the wife with a copy of his annual federal income tax return. The case was transferred to the Circuit Court for Davidson County after the wife and child moved to Nashville. In November 1999, the mother requested the trial court to increase child support and to hold the husband in contempt for failing to provide her copies of his tax returns. Following a bench trial, the trial court not only increased the child support prospectively but also awarded the wife $19,026 in retroactive child support back to 1996. The husband asserts on this appeal that the trial court erred by awarding retroactive child support. We have determined that the trial court did not err by awarding child support back to 1996 because the wife had filed a motion to modify child support in 1996 that had never been acted upon. Accordingly, we affirm the judgment.

State of Tennessee v. Sybil Baker
M2001-02146-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge J. Curtis Smith

The appellant, Sybil Baker, was convicted by a Franklin County jury of one count of aggravated assault, one count of reckless endangerment, and one count of leaving the scene of an accident involving property damage. The trial court properly merged the convictions for aggravated assault and reckless endangerment and imposed a sentence of five years to be served in community corrections. On appeal, the appellant contends that the evidence is not sufficient to support the convictions of aggravated assault, reckless endangerment, or leaving the scene of an accident. Following a review of the record and the parties' briefs, we affirm the judgments of the trial court as to the appellant's convictions and remand for further proceedings consistent with this opinion.

State of Tennessee v. Kendrick F. Love
M2002-00126-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Robert L. Jones

Defendant, Kendrick F. Love, was indicted by the Giles County Grand Jury on four counts of delivery of cocaine and four counts of the sale of cocaine, all Class B felonies. Defendant was convicted by a jury of his peers of facilitation of the sale of cocaine, facilitation of the delivery of cocaine, three counts of the sale of cocaine, and three counts of delivery of cocaine. Defendant received a total effective sentence of twenty-eight years as a Range II multiple offender. On appeal, Defendant argues that his sentence is excessive and that the trial court erred in denying his motion to sever the offenses. After a careful review of the record, we affirm the judgments of the trial court.

Frank Fly v. Simple Pleasures
M2002-01385-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: J. S. Daniel
Landlord appeals an Order granting summary judgment to Tenant on the effect of a holdover tenancy after the expiration of the term of the lease. We affirm the judgment of the trial court.

Bellsouth BSE v. Tennessee Reg. Authority
M2000-00868-COA-R12-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
BellSouth BSE, Inc. appeals from an order of the Tennessee Regulatory Authority denying BSE's application for certification as a competing local exchange company in those areas where BSE's affiliate, BellSouth Telecommunications, is the incumbent provider of local services. Because the TRA denied the petition on the basis that such certification may be inconsistent with the goal of fostering competition and could be potentially adverse to competition, as opposed to establishing conditions or requirements designed to ensure that anticompetitive practices did not occur, we vacate the order as beyond the agency's statutory authority.

Russell Gregory III vs. Mary Gregory
W2002-01049-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: D. J. Alissandratos
This appeal arises from a divorce and custody proceeding. The trial court found it to be in the best interest of the child that the father be granted primary custody of the parties' minor daughter. The primary issue on appeal is whether the trial court erred in applying the best interest analysis. For the following reasons, we affirm.

City of Oakland, Tennessee v. Lenita Mccraw,
W2002-01552-COA-R3-CV
Authoring Judge: Judge W. Frank Crawford
Trial Court Judge: William H. Inman

Joe R. Hales v. Shelby County, Tennessee
W2002-01539-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: D'Army Bailey

This Case Arises Out of The Same Set of Facts As Carroll v. Whitney, 29 S.W.3D 14 (Tenn.
W2002-02105-COA-R3-CV
Authoring Judge: Judge David R. Farmer

State of Tennessee v. Betsy Dowdy
W2001-03104-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge James C. Beasley, Jr.

On September 20, 1999, the Defendant pled guilty to theft of property valued over $1000 and to attempted aggravated robbery. The trial court sentenced the Defendant to two years for the theft conviction and to six years for the aggravated robbery conviction. The trial court suspended both sentences and placed the Defendant on six years' probation. On June 24, 2001, the Defendant was arrested for theft of property valued over $500. Based on the arrest, the trial court revoked the Defendant's probation. The Defendant now appeals, arguing that the trial court erred by revoking her probation. Finding no error, we affirm the judgments of the trial court.

W2002-02322-COA-R3-CV
W2002-02322-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Martha B. Brasfield

In Matter of D.A.H.
W2002-00733-COA-R3-JV
Authoring Judge: Judge W. Frank Crawford
Trial Court Judge: Harold W. Horne
This is a termination of parental rights case. The father appeals from the order of the juvenile court terminating parental rights to his child. Specifically, the father asserts that the grounds for termination cited by the trial court are no longer applicable based on the Supreme Court's recent holding in Jones v. Garrett, 92 S.W.3d 385 (Tenn. 2002). Because we find a distinction between the instant case and Jones v. Garrett, we affirm the order of the trial court.

In Matter of D.A.H.
W2002-00733-COA-R3-JV
Authoring Judge: Judge W. Frank Crawford
Trial Court Judge: Harold W. Horne
This is a termination of parental rights case. The father appeals from the order of the juvenile court terminating parental rights to his child. Specifically, the father asserts that the grounds for termination cited by the trial court are no longer applicable based on the Supreme Court's recent holding in Jones v. Garrett, 92 S.W.3d 385 (Tenn. 2002). Because we find a distinction between the instant case and Jones v. Garrett, we affirm the order of the trial court.

State of Tennessee v. Genore Dancy
W2001-02451-CCA-R3-CD
Authoring Judge: Judge J. Curwood Witt, Jr.
Trial Court Judge: Judge Joseph B. Dailey

After a Shelby County Criminal Court jury found the defendant, Genore Dancy, guilty of four counts of aggravated rape, seven counts of especially aggravated kidnapping, five counts of aggravated robbery, and one count of aggravated burglary, the trial court merged the aggravated rape verdicts into two aggravated rape convictions, imposed the remaining convictions, and sentenced the defendant to an effective incarcerative term of 150 years. In his appeal, the defendant claims that his especially aggravated kidnapping convictions violate principles of due process, that the evidence in one of the aggravated rape counts was insufficient to support that conviction, that the trial court erred in failing to instruct the jury as to the lesser-included offense of facilitation, and that, in sentencing the defendant, the trial court erred in not applying a mitigating factor and in misapplying various enhancement factors. Discerning no reversible error, we affirm.

Roscoe H. Woods v. State of Tennessee
E2001-01790-CCA-R3-PC
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge James B. Scott, Jr.

The petitioner appeals the denial of his petition for post conviction relief, arguing that the post-conviction court erred in finding that he received effective assistance of trial counsel. Based on our review, we conclude that the petitioner failed to meet his burden of demonstrating that his trial counsel provided ineffective assistance. Accordingly, we affirm the post-conviction court's denial of post-conviction relief.

State of Tennessee v. Joshua Aaron Roush
E2002-00313-CCA-R3-CD
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge Richard R. Baumgartner

The Appellant, Joshua Aaron Roush, appeals the sentencing decision of the Knox County Criminal Court. Roush pled guilty to attempted second degree murder and, following a hearing, was sentenced as a Range I offender to a term of eleven years in the Department of Correction. Roush appeals, asserting that his sentence was excessive because the trial court failed to comply with relevant sentencing principles and erred in not applying six mitigating factors. After a review of the record, we find that Roush's issue is without merit. Accordingly, the judgment is affirmed.

Dale Pratt v. Averitt Express, Inc.
E2002-00864-WC-R3-CV
Authoring Judge: Howell N. Peoples, Special Judge
Trial Court Judge: Daryl Fansler, Chancellor
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 the trial court's refusal to cap the employee's award at two and one-half times the employee's medical impairment as provided by Tenn. Code Ann. _ 5-6-241(a)(1). We modify the judgment of the trial court. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Knox County Chancery Court is Modified. HOWELL N. PEOPLES, SP. J., in which WILLIAM M. BARKER, JUSTICE, and JOHN K. BYERS, SR. J., joined. Andrew R. Tillman, LLP, Paine, Tarwater, Bickers and Tillman, Knoxville, Tennessee, for the Appellant, Averitt Express, Inc. Richard Baker, Baker, Gulley & Oldham, P.A., Knoxville, Tennessee, for the Appellee, Dale Pratt. MEMORANDUM OPINION Facts On October 27, 1999, Dale Pratt sustained a back injury in the course and scope of his employment with Averitt Express, Inc. ("Averitt"). His treating physician assigned a permanent medical impairment of seven percent to the body as a whole. At the time of the injury, Pratt was working as a truck driver and was paid $17.1 per hour for both regular and overtime hours he 1 worked. Following the injury, medical restrictions prevented his return to work as a truck driver. Averitt trained him to be a dispatcher and retained him at a salary of $725 for a 4-hour week, the equivalent of $18.12 per hour and paid him overtime at the rate of $9.6 per hour. Mr. Pratt continued to work approximately the same amount of overtime as he had worked before the injury. Pay records introduced at the trial established that because of the difference in overtime pay per hour, the actual average weekly compensation received by Mr. Pratt before the injury was greater than that received after he returned to work in the new position. The trial court held that Mr. Pratt had "not returned to the same wage because he was earning less on an average weekly basis than he did prior to the injury; that the two and a half times under 241 (did) not apply; and that he is entitled to a permanent and partial disability to the body as a whole at three and half times seven percent for a rating twenty-four and half percent to the body as a whole in this case." Standard of Review 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); Tucker v. Foamex, L.P., 31 S.W.3d 241, 242 (Tenn. 2). 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. Corcoran v. Foster Auto GMC, Inc., 746 S.W.2d 452 456 (Tenn. 1988). Conclusions of law are subject to de novo review with no presumption of correctness. Ganzevoort v. Russell, 949 S.W.2d 293 (Tenn. 1997). Issue The issue is whether the trial court erred in failing to apply the statutory cap of two and one-half times the employee's medical impairment pursuant to Tenn. Code Ann. _ 5-6- 241(a)(1). Discussion At the time of the trial of this case, the Tennessee Supreme Court had decided the case of Wilkins v. Kellogg Co., 48 S.W.3d 148 (Tenn. 21) relating to an award of temporary partial disability and holding that the term "wage" as used in Tenn. Code Ann. _ 5-6- 27(2) referred to the amount paid to an injured employee by an employer on an hourly basis. The Supreme Court, with two members dissenting, distinguished the term "wage" as used in Tenn. Code Ann. _ 5-6- 27(2) from the term "average weekly wage" used in other portions of the Worker's Compensation Act. In Wilkins, the Court noted that "average weekly wage" includes such compensation as overtime, bonuses and commissions. It held that the term "wage" as used in Tenn. Code Ann. _ 5-6-27(2) did not permit the inclusion of overtime in determining the amount of temporary partial benefits to be paid to an injured employee. Ms. Wilkins normally worked 6 hours each week and was paid at the rate of $21.52 per hour for 4 hours and a higher 2