State of Tennessee v. Phillip Charles Saindon, Jr. and Jerry Sailors
M2001-01860-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Seth W. Norman

The defendants, Phillip Charles Saindon, Jr. and Jerry Sailors, were each convicted of one count of theft over $10,000 and one count of theft over $60,000. In addition to challenging the sufficiency of the evidence on appeal, they argue that there was a fatal variance between the indictment and the proof and that the trial court erred in admitting hearsay evidence. We conclude there was no material or prejudicial variance between the indictment, which alleged theft of United States currency, and the proof as to each was sufficient to sustain the convictions of theft over $60,000. However, as to the convictions for theft over $10,000, we conclude that, although the State presented sufficient evidence to establish that the defendants committed theft of property, the evidence was insufficient to establish the value of the thefts for these convictions. Accordingly, we modify the convictions for theft over $10,000 to theft over $1000 and remand the case to the trial court for appropriate sentencing for this offense. We affirm the judgments of conviction for theft over $60,000.

State of Tennessee v. Richard Warren
M2001-02139-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge James K. Clayton, Jr.

The appellant, Richard Warren, pled guilty in the Rutherford County Circuit Court to two counts of aggravated sexual battery. The trial court sentenced the appellant on each offense to eleven years incarceration in the Tennessee Department of Correction. On appeal, the appellant contends that the trial court misapplied enhancement and mitigating factors in determining his sentences. Upon review of the record and the parties' briefs, we affirm the judgments of the trial court.

State of Tennessee v. Brian Ernest Merriweather
M2002-01817-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Michael R. Jones

Following a bench trial, Defendant, Brian Ernest Merriweather, was found guilty of the unlawful sale of more than 0.5 grams of cocaine. He was sentenced to serve fourteen years as a Range II multiple offender. In his sole issue on appeal, Defendant argues that the evidence was insufficient to support his conviction, and that, at most, the State proved that he was guilty of a casual exchange of cocaine. After a review of the record, we affirm the judgment of the trial court.

Squeeky Clean v. David Harvey
M2002-00538-COA-R3-CV
Authoring Judge: Judge L. Craig Johnson
Trial Court Judge: Carol L. Mccoy
This appeal arose after the trial court dismissed Squeeky Clean Laundries, Inc.'s action against David E. Harvey, et al. for failure to prosecute. Because there was no proof of a willful violation of a court order, we find that the trial court abused its discretion. We reverse the trial court's decision and remand.

Richard Humphrey v. Jeanetta Gammage
M2002-00507-COA-R3-CV
Authoring Judge: Judge L. Craig Johnson
Trial Court Judge: Ellen Hobbs Lyle
This appeal arose after the trial court granted summary judgment for Jeanetta Gammage and Deborah Gammage against Richard Humphrey in his petition to establish paternity of Karenda Raines. Because the petitioner could not establish any issues of material facts as grounds to proceed with his petition, we affirm the judgment of the trial court.

State of Tennessee v. Paul Graham Manning
M2002-00547-CCA-R3-CD
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge Leon C. Burns, Jr.

The Defendant, Paul Graham Manning, was convicted by a jury of first degree premeditated murder and felony reckless endangerment. In this direct appeal, the Defendant raises six issues: (1) whether the evidence is sufficient to support his convictions; (2) whether the trial court properly instructed the jury on lesser-included offenses; (3) whether the trial court properly instructed the jury on the culpable mental state required for premeditated murder; (4) whether the Defendant was denied his constitutional right to a speedy trial; (5) whether the trial court erred by not reducing his bond; and (6) whether the trial court erred in quashing the Defendant's subpoena for certain witnesses. We affirm the judgment of the trial court.

Vicki B. Carlton v. Sharon L. Davis
M2002-01089-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Barbara N. Haynes
The trial court granted summary judgment to Appellee based upon expiration of the applicable statute of limitations. Appellant asserts that Tennessee Code Annotated section 56-7-1201(g) tolls the statute of limitations, or that, in the alternative, Appellee is equitably estopped from relying upon the statute of limitations. We affirm the action of the trial court.

Myron Gentry, et al v. Hospital Housekeeping Systems of Houston, Inc.
M2002-01513-COA-R3-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: Barbara N. Haynes
This appeal arose after the trial court granted summary judgment for Hospital Housekeeping Systems of Houston, Inc. on a suit brought by an employee of Centennial Medical Center who slipped and fell after stepping on wet carpet. Because a material factual dispute exists, we reverse the trial court's decision and remand.

M2002-00560-COA-R3-CV
M2002-00560-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Irvin H. Kilcrease, Jr.

Ronnie Brown v. State
M2002-01361-COA-R3-CV
Authoring Judge: Judge William B. Cain
Claimants appeal the action of the Tennessee Claims Commission in dismissing their claims based upon the expiration of the statute of limitations. We affirm the action of the Claims Commission.

Amin Shabazz v. State of Tennessee
M2002-01302-CCA-R3-PC
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Seth W. Norman

Petitioner, Amin Shabazz, filed a petition for post-conviction relief attacking his conviction for sale of a controlled substance containing more than 0.5 grams of cocaine, following a plea of nolo contendere in the Davidson County Criminal Court. He received a ten-year sentence. The conviction occurred on August 27, 2001, and the petition for post-conviction relief was timely filed on April 22, 2002. The trial court dismissed the petition without appointing counsel, without allowing Petitioner to amend the petition, and without an evidentiary hearing. On appeal, the Petitioner asserts that the trial court erred by summarily dismissing the petition. The State agrees. Following a review of the record, we reverse the judgment of the trial court, and remand this case for an evidentiary hearing and for the post-conviction trial court to further allow Petitioner to receive all procedural rights granted to him pursuant to the Post-Conviction Relief Act.

State of Tennessee v. Corey Mickens, Christopher Smith, Matthew Dixon, and Choncey Jones
W1999-01169-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Joseph B. Dailey

The defendants, Corey Mickens, Christopher Smith, Matthew Dixon, and Choncey Jones, all members of the Gangster Disciples, were indicted for various offenses as the result of the kidnapping of Marshall Shipp and Ricky Aldridge and subsequent beating of Aldridge and murder of Shipp, both of whom also were Gangster Disciples. Mickens was convicted of first degree murder in the perpetration of aggravated kidnapping and especially aggravated kidnapping of Shipp. Smith, Dixon, and Jones were convicted of first degree premeditated murder and especially aggravated kidnapping of Shipp, and all four defendants were convicted of the especially aggravated kidnapping of Aldridge. All four defendants were sentenced to life without the possibility of parole on the first degree murder charges. Additionally, Mickens was sentenced to two consecutive twenty-two-year sentences for the two especially aggravated kidnapping charges. Smith was sentenced to two consecutive forty-year sentences for the two especially aggravated kidnapping charges. Dixon was sentenced to two consecutive thirty-two-year, six month sentences for the two especially aggravated kidnapping charges. Jones was sentenced to two consecutive twenty-year sentences for the two especially aggravated kidnapping charges. On appeal, the defendants raise a number of issues, both jointly and individually. They argue that the trial court erred in denying the motions to sever, in its jury instructions, and in sentencing. Additionally, all argue that the evidence was insufficient to sustain their convictions. Jones and Mickens individually present several issues, including that the trial court erred in admitting into evidence an affidavit supposedly written by Jones, by allowing Jones's jail armband to be read to the jury, in allowing a State's witness to testify that Dixon flashed gang signs during her testimony, and in certain rulings regarding the State's closing argument. Smith argues that the trial court excused a juror without cause. Following our review, we affirm the convictions and sentences as to each defendant.

State of Tennessee v. Lawrence Taylor
W2002-00183-CCA-R3-CD
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Judge Joseph H. Walker, III

A Tipton County jury convicted the defendant of the delivery of .5 grams or more of cocaine. On appeal, he argues: (1) the evidence was insufficient to support his conviction; (2) the trial court erred in refusing to grant a mistrial after the prosecutor improperly questioned the defendant about prior drug sales; and (3) the trial court erroneously instructed the jury regarding his co-defendant's status as an accomplice. We conclude the trial court erred in refusing to grant a mistrial. Accordingly, we reverse the judgment of the trial court and remand the matter for a new trial.

State of Tennessee v. Jerry Steven Cothran and Lee Theodore Smith
W2002-00485-CCA-R3-CD
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Judge Joseph H. Walker, III

A Lauderdale County grand jury indicted the defendants, Jerry Steven Cothran and Lee Theodore Smith, on one count of attempt to manufacture a controlled substance, two counts of possession of controlled substances, and one count of possession of drug paraphernalia. Cothran was also indicted on three counts of unlawful possession of a firearm. The trial court granted the defendants' motion to suppress evidence based upon an illegal search. On appeal, the state contends the trial court erred in granting the defendants' motion to suppress. Upon review of the record and the applicable law, we reverse the judgment of the trial court.

Christopher N. Robinson v. William Fulliton
W2001-01753-COA-R3-CV
Authoring Judge: Judge Holly Kirby Lillard
Trial Court Judge: Judge D. J. Alissandratos

This is a wiretapping case. A husband and a wife were experiencing marital difficulties. During that time, the husband tape recorded a telephone conversation between his wife and her brother without the knowledge of either. When the brother found out, he filed a lawsuit  against the husband, his brother-in-law, seeking damages under the civil damages provision of the Tennessee wiretapping statutes, Tenn. Code Ann. § 39-13-603. The trial court, sitting without a jury, held that the husband was liable to his brother-in-law, and awarded nominal compensatory damages, litigation expenses, and attorney’s fees. The husband and the brother-in-law both appeal that decision, arguing that the damage award was erroneous. We reverse the trial court’s award of damages, finding that the statute requires that, when a violation is established, the trial court must award either the actual damages or the statutory minimum penalty of $10,000, whichever is greater.

Sherry Ellen Carwile v. Compass Group, USA, Inc.,
W2001-03163-WC-R3-CV
Authoring Judge: Joe C. Loser, Jr., Sp. J.
Trial Court Judge: William Michael Maloan, 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. In this appeal, the employer insists the trial court erred in admitting, over objection, certain medical expenses allegedly incurred by the plaintiff. As discussed below, the panel has concluded that proof that the expenses allowed were reasonable and necessary was not required where the employer failed to provide medical care as required by Tenn. Code Ann. _ 5-6-24(a)(4)(A). Tenn. Code Ann. _ 5-6-225(e) (22 Supp.) Appeal as of Right; Judgment of the Chancery Court Affirmed JOE C. LOSER, JR., SP. J., in which JANICE M. HOLDER, J., and JOHN K. BYERS, SR. J., joined. Ronald L. Harper and R. Scott Harper, Memphis, Tennessee, for the appellant, Compass Group, USA, Inc., d/b/a Canteen Vending Services Jay E. DeGroot, Jackson, Tennessee, for the appellee, Sherry Ellen Carwile MEMORANDUM OPINION This civil action was initiated by the employee or claimant, Ms. Carwile, to recover workers' compensation benefits, including reasonably necessary medical expenses, for a work related injury. At the conclusion of the trial, the trial court ordered, among other things, that the claimant recover any outstanding medical expenses incurred, pursuant to Tenn. Code Ann._ 5-6- 24. The employer, Compass Group, USA, has appealed. Appellate review is de novo upon the record of the trial court, accompanied by a presumption of correctness of the findings of fact, unless the preponderance of the evidence is otherwise. Tenn. Code Ann. _ 5-6-225(e)(2) (22 Supp.). The reviewing court is required to conduct an independent examination of the record to determine where the preponderance of the evidence lies.

Rosie Fuller v. Wal-Mart Stores, Inc.,
W2002-00745-WC-R3-CV
Authoring Judge: John K. Byers, Sr. J.
Trial Court Judge: Joe C. Morris, 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 judge found the plaintiff had suffered a 9 percent disability to her body as a whole as a result of an injury to her legs and back. The award was apportioned at 75 percent to the employer and 15 percent to the Second Injury Fund because the plaintiff had a previous injury to her leg which amounted to a 25 percent permanent partial disability, which was paid by Wal-Mart. We modify and affirm the judgment. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Chancery Court Affirmed as Modified and Remanded JOHN K. BYERS, SR. J., in which JANICE M. HOLDER, J. and JOE C. LOSER, SP. J., joined. Jay L. Johnson, Jackson, Tennessee, attorney for appellant, Wal-Mart Stores, Inc. David Hardee, Jackson, Tennessee, attorney for appellee, Rosie Fuller. Paul G. Summer, Attorney General and Reporter; E. Blaine Sprouse, Assistant Attorney General, for the appellee, State of Tennessee. MEMORANDUM OPINION In 1997, the plaintiff developed tarsal tunnel syndrome in her right leg. She was placed in a brace to support her right leg. In September of 1999, the plaintiff started having pain in her left leg. Dr. Wormbrod placed a brace on the left leg as well. Further, the plaintiff began to experience back pain. The plaintiff fell on July 4, 2, while at work and represented she injured both legs and her back. The plaintiff continued to work for the defendant throughout the time of her leg problem and was still working at the time of trial. The defendant assigned her to work at a light-duty job which accommodated the medical restrictions set by physicians. A supervisor testified that plaintiff was a good employee and there was no plan to discharge her. The plaintiff received two raises after her disability and is making more than she was prior to her injuries. Medical Evidence Dr. James Warmbrod, an orthopedic surgeon, was the plaintiff's treating physician. He described the tarsal tunnel syndrome condition the plaintiff suffered and was of the opinion this could be caused by her long hours of standing on concrete in her job. He placed restrictions on long periods of standing, weight lifting, etc., and recommended that she do only sedentary jobs. Dr. Warmbrod did not fix any medical impairment rating, nor did he testify as to a date of maximum medical improvement. He testified the plaintiff might require surgery in the future. He was, however, reluctant to do surgery for various reasons. He was of the opinion the back pain the plaintiff suffered was because her gait was altered as a result of wearing the braces. Dr. Riley Jones, an orthopedic surgeon, filed a C-32 form, basically stating the plaintiff's problems were not related to her work and gave no impairment rating. Dr. Robert Barnett, an orthopedic surgeon, evaluated the plaintiff and confirmed Dr. Warmbrod's opinion of the injuries. Dr. Barnett found the plaintiff had sustained a 44 percent whole body disability. This included a 5 percent rating because of back pain, 15 percent for the left leg problem and 3 percent for the previous injury to the plaintiff's right leg. There is no medical evidence in the record to show the plaintiff sustained any injury to her right leg which would be compensable as a result of the fall of July 4, 2. Findings at Trial The trial judge found the case involved injury to both legs and also to the plaintiff's back. He found the plaintiff had to alter her gait since she began wearing a brace on her right leg in 1999. He found the injury at work on July 4, 2, aggravated her three prior injuries. The trial court found the plaintiff reached maximum medical improvement on June 2, 2, the date Dr. Wormbrod placed work restrictions on her. The trial judge found the plaintiff had sustained a 9 percent whole body disability as a result of the injury and because of the previous disability, which was 25 percent to the body as a whole. The trial court concluded that the defendant must pay 75 percent or 36 weeks of the award and the -2-

XI Properties v. Racetrac Petroleum
M2001-00977-COA-R3-CV
Authoring Judge: Judge Marietta M. Shipley
Plaintiffs, XI Properties Inc. et al., purchased land from the defendant, RaceTrac, adjacent to RaceTrac Petroleum in 1992. Seven years later, XI Properties, while attempting to develop the property, learned RaceTrac had inadvertently conveyed to them portions of RaceTrac parking, curbs and light posts. Plaintiffs proposed to remove the unnatural slope created by the parking lot, but defendants were concerned about their rights and responsibilities. Plaintiffs filed a declaratory judgment. Defendants filed a Motion for Summary Judgment. We reverse the trial court=s grant of summary judgment to XI Properties as to adverse possession by RaceTrac. We remand the issue to the trial court to determine if Racetrac can establish possession of the property. Further we affirm the finding that XI Properties owes no duty to RaceTrac for lateral support, so long as it does not act negligently.

Stephen Morgan v. Paula Morgan
M2002-00793-COA-R3-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: Carol A. Catalano
Husband and Wife were declared divorced on the basis of stipulated grounds. Wife appeals the classification and division of the property. We affirm the decision of the trial court.

Cathy Lovett v. John Kelley
M2002-01078-COA-R3-CV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: Jim T. Hamilton
A woman whose car was struck by another vehicle brought suit against the driver of a van involved in the accident as well as the driver's employer, claiming the collision aggravated her pre-existing back injury. The defendants did not dispute liability, but claimed that the plaintiff's injury was relatively minor. After a hearing, the trial court entered a $100,000 judgment against the defendants. We reverse, because we believe the trial court's award included damages for injuries that were not proximately caused by the defendant's actions.

Mark Pirtle Chevrolet v. Celebration Nissan
M2002-00554-COA-R3-CV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: J. B. Cox
This case involved claims and counter-claims for breach of contract on the sale of an automobile dealership. After a hearing, the trial court awarded the plaintiffs damages for most of their claims. Since the defendants did not file a timely notice of appeal, we cannot consider arguments about the court's Final Order. However, the plaintiff filed a Rule 60 motion to clarify one paragraph of the Final Order. The trial court granted the motion, and modified the order to specify that the defendant was to pay the plaintiff $49,000 for certain cars that had been the subjects of a dispute. The defendant appealed the trial court's action. We affirm.

James Pylant v. Karen Spivey
M2002-00602-COA-R3-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: Robert L. Holloway
This appeal involves a dispute over the extent of a father's obligation, under a provision in a property settlement agreement, to pay for his daughter's college education. The daughter chose to attend an expensive private college. The trial court found that father should pay tuition equivalent to the cost of an out-of-state public university. Both parties appealed. We affirm the trial court's decision that the father is obligated to pay reasonable costs, but vacate the judgment because there is insufficient proof of such costs.

Gail Allen v. Saturn Corp.
M2002-01238-COA-R3-CV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: Jim T. Hamilton
Appellants, Gail and Larry Allen, sustained injuries when a tent collapsed during a thunderstorm at a Homecoming at the Saturn Corporation in Spring Hill. They brought suit for their injuries caused by negligence in maintenance and construction of the tent. They dismissed or settled their claims with all Defendants except Saturn Corporation. Saturn filed a Motion for Summary Judgment arguing that Appellants were unable to establish a prima facie case of the Appellee's negligence. The trial court granted Appellee's Motion for Summary Judgment. We affirm the decision of the trial court.

State of Tennessee v. Douglas E. Gones
W2002-00773-CCA-R3-CD
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Judge Roy B. Morgan, Jr.

The defendant pled guilty to one count of vehicular homicide and three counts of reckless aggravated assault following an automobile accident in which a mother was killed and her three young children were injured. The trial court imposed an effective four-year sentence in the Department of Correction. The defendant appeals the trial court's denial of alternative sentencing. We affirm the judgments of the trial court.

James Glover vs. Tetyana Glover
E2002-01690-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Kindall T. Lawson
The trial court entered a judgment granting the complaint for annulment filed by James Eugene Glover ("Husband"). Within 30 days of the entry of the judgment, Tetyana Glover ("Wife") filed a motion seeking to set aside the judgment. She claims that she did not have prior notice that the complaint was to be considered on June 19, 2002, the date on which the record reflects this case was heard. The trial court, finding that it lacked jurisdiction to consider Wife's motion, denied her request to set aside the judgment. Wife appeals. We vacate the trial court's order refusing to consider Wife's motion and remand this matter to the trial court for consideration of the motion.