State of Tennessee v. Harry Jamieson W2001-02449-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge W. Otis Higgs, Jr.
The defendant was convicted by a Shelby County Criminal Court jury of one count of aggravated robbery, a Class B felony, and two counts of aggravated assault, Class C felonies, based on his participation in an armed robbery of a Memphis restaurant. He was sentenced by the trial court as a standard, Range I offender to concurrent terms of nine years for the aggravated robbery conviction and four years for each aggravated assault conviction, for an effective sentence of nine years in the Department of Correction. He was fined $500 for each conviction. On appeal, the defendant argues that the trial court erred by failing to instruct the jury on the lesser-included offenses of facilitation of aggravated robbery and aggravated assault and by improperly applying enhancement factors to enhance his sentences from the minimum in his range. We conclude that the trial court’s failure to instruct the jury on the lesser-included offenses of facilitation constitutes reversible error under the circumstances of this case. Accordingly, we reverse the judgment of the trial court and remand the case for a new trial.
Shelby
Court of Criminal Appeals
Prudential Botts & Associates vs. R & E Properties E2002-01827-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: W. Frank Brown, III
In this case Prudential Botts & Associates Realtors, Inc., a real estate agency, sues R & E Properties, LLC, and one of its principals, Paula Ellis, and her father, James Runion, who advised and exerted influence over his daughter in connection with the business of R & E. The suit alleges that the Defendants violated the Tennessee Consumer Protection Act, T.C.A. Title 47, Chapter 17, resulting in damages to Prudential because a real estate transaction did not close as a result of misstatements made by the individual Defendants, thereby causing Prudential to lose a commission it otherwise would have received. After a plenary trial the Chancellor found in favor of the Plaintiff and awarded it $147,000 in compensatory damages; $97,000 in attorney fees; and $45,000 in pre-judgment interest. We reverse and dismiss.
Hamilton
Court of Appeals
Leah Miller vs. Gary Hill E2002-02018-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Wheeler A. Rosenbalm
Leah Michelle Miller, a minor, was injured while attempting to dismount a trampoline in the yard of a two-story duplex. Her parents, Robert G. Miller and Brenda Gail Miller ("the plaintiffs"), rented the lower unit of the duplex. The Millers sued their landlords, Gary Boyd Hill and Martha Hill ("the Landlords"). They also named as defendants the occupants of the upstairs unit, Steve Cooper and Tanya Caldwell. The suit against these latter two defendants was based upon their ownership of the trampoline. The Landlords moved for summary judgment. They essentially argued that they owed no duty of care to the plaintiffs or their child with respect to the trampoline. The trial court granted the motion and entered a final judgment pursuant to Tenn. R. Civ. P. 54.02. We affirm.
Knox
Court of Appeals
Cynthia Lee Bratton vs. Michael Wayne Bratton E2002-00432-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Thomas R. Frierson, II
In divorce action the trial court granted divorce, refused to enforce a postnuptial agreement, divided marital property, awarded alimony and child support. On appeal, we affirm.
Hamblen
Court of Appeals
Kevin Haney vs. Brad Copeland E2002-00845-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Sharon J. Bell
Kevin C. Haney and his wife, Marilyn Sue Melhorn ("the buyers"), purchased a retail business from Brad Copeland ("the seller") for $200,000. When their business failed, the buyers sued the seller for rescission and, in the alternative, for compensatory and punitive damages, alleging fraud and breach of contract. Following a bench trial, the buyers were awarded incidental and punitive damages totaling $99,053. The buyers appeal, arguing that they were entitled to additional damages equal to the amount of the purchase price. We affirm.
The petitioner, Robert L. Wilks, appeals from the trial court's denial of his petition for habeas corpus relief. The trial court did not appoint counsel. In this appeal of right, the petitioner alleges that the trial court erred by denying the appointment of counsel and by entering the order of summary dismissal. The judgment is affirmed.
Johnson
Court of Criminal Appeals
Elizabeth Whitaker vs. Lawson Whitaker E2002-00847-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Jacqueline E. Schulten
In this post-divorce case, Lawson S. Whitaker, III ("Father") filed a complaint against Elizabeth Donahue Whitaker ("Mother"), seeking to hold her in contempt of court for depriving him of visitation privileges and parenting time with the parties' minor daughter, Grace Anne Whitaker (DOB: September 6, 1996) ("the child"). In response, Mother filed, inter alia, a counterclaim for contempt and for modification of the parties' Parenting Plan. The trial court found a substantial and material change in circumstances justifying a modification of the Parenting Plan. In addition, the trial court held Father in contempt due to his failure to follow the court's prior orders and for harassing Mother. Father appeals both the modification and the court's finding of contempt. Mother seeks attorney's fees for this appeal. We affirm and remand to the trial court for that court to set attorney's fees for Mother in connection with this appeal.
Hamilton
Court of Appeals
State of Tennessee v. Antoinette Hill E2001-02524-CCA-R3-CD
Authoring Judge: Presiding Judge Gary R Wade
Trial Court Judge: Judge Richard R. Baumgartner
The defendant, Antoinette Hill, was convicted of first degree premeditated murder. The trial court imposed a life sentence. In this appeal of right, the defendant challenges the sufficiency of the evidence and argues that the trial court erred in its instructions to the jury. The judgment is affirmed.
The defendant, Ronald David Wallace, Jr., was convicted of four counts of aggravated sexual battery. See Tenn. Code Ann. § 39-13-504(a)(4) (providing that “[a]ggravated sexual battery is unlawful sexual contact with a victim by the defendant . . . [where] [t]he victim is less than thirteen (13) years of age”). The trial court ordered concurrent sentences of eight years. In this appeal of right, the defendant argues that the evidence was insufficient to support his convictions. The judgments of the trial court are affirmed.
Campbell
Court of Criminal Appeals
Ferryl McClain vs. Richard McClain E2002-00913-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: John S. Mclellan, III
This is a divorce case. The trial court dissolved the parties' marriage based upon a stipulated ground for divorce; divided the marital property; and awarded Richard Perry McClain ("Father") primary physical custody of the parties' two minor children. Ferryl Theresita McClain ("Mother") appeals the grant of custody to Father. In addition, she raises several procedural issues. We affirm.
Sullivan
Court of Appeals
State of Tennessee v. Tina Cunningham E2002-00571-CCA-R3-CD
Authoring Judge: Presiding Judge Gary R Wade
Trial Court Judge: Judge D. Kelly Thomas, Jr.
The defendant, Tina Cunningham, was convicted of two counts of introduction of contraband into a penal facility. The trial court imposed a six-year sentence and granted immediate probation. Later, the trial court extended the original six-year sentence by two years when the defendant was convicted of two counts of forgery, but permitted the defendant to remain on probation. The trial court imposed an effective sentence of four years for the forgery convictions, to be served on probation and consecutively to the sentence for introduction of contraband into a penal facility. At some point, the trial court ordered the defendant to complete a drug program. When she failed to do so, the trial court revoked the defendant's probation and ordered her to serve the balance of her sentence in a community corrections program. When the defendant failed to comply with the requirements of the program, the trial court revoked the community corrections sentence and ordered the defendant to serve the balance of her sentence in the Department of Correction. In this appeal as of right, the single question presented for our review is whether the trial court erred by ordering the defendant to fully serve the balance of her sentence. The judgment of the trial court is affirmed.
Blount
Court of Criminal Appeals
Frances Jones ex rel. Nell Hampton vs. LaFollette Nursing Home E2002-01183-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: Conrad E. Troutman, Jr.
Frances B. Jones, on behalf of her mother, Nell Hampton, sues LaFollette Nursing Home, alleging Ms. Hampton was entitled to damages for improper care given to her while a resident patient there. The Trial Court granted a summary judgment in favor of the Nursing Home upon finding that Ms. Hampton's claim was barred by the applicable statutes of limitations and that she introduced no proof to rebut the Nursing Home's proof that they met the appropriate standard of care in ministering to Ms. Hampton. We dismiss the appeal.
The petitioner was convicted of two counts of attempted first degree murder and three counts of reckless endangerment and received an effective sentence of thirty years. On direct appeal, this court affirmed the petitioner's convictions and sentence. The petitioner now contends that his trial counsel provided ineffective representation. After reviewing the record, we conclude that the petitioner has failed to meet his burden of demonstrating that his trial counsel provided ineffective assistance. Accordingly, we affirm the denial of the petition for post-conviction relief.
Pursuant to Tennessee Code Annotated section 39-13-213(a)(1) (1997), the defendant, Adrianne Elizabeth Noles, was charged with vehicular homicide by recklessness in the Haywood County Circuit Court. She submitted a guilty plea to the charge, a Class C felony, and agreed to have the trial court determine the length and manner of service of her sentence. After a sentencing hearing, the trial court imposed a three-year sentence to be served in the Department of Correction. Aggrieved of the trial court’s rejection of any sentencing alternative to incarceration, she appeals. We affirm.
Haywood
Court of Criminal Appeals
State of Tennessee v. Tracy R. Pipes W2002-00433-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge C. Creed McGinley
The defendant, Tracy R. Pipes, appeals the Hardin County Circuit Court's revocation of her drug-offense probation. The court ordered her to serve the effective eight-year sentence in the Department of Correction. Because the record supports the lower court's actions, we affirm.
Hardin
Court of Criminal Appeals
State of Tennessee v. Melvin L. Harper E2001-01089-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Phyllis H. Miller
The appellant, Melvin L. Harper, was convicted by a jury in the Criminal Court of Sullivan County of aggravated robbery, a Class B felony. The appellant was sentenced as a Range II multiple offender to twenty years incarceration in the Tennessee Department of Correction. On appeal, the appellant challenges: (1) the sufficiency of the evidence to support his conviction of armed robbery; (2) the trial court's granting of the State's motion to amend the indictment on the day of trial; (3) the wording of the trial court's jury instructions regarding lesser-included offenses; and (4) the sentence imposed by the trial court. After a careful review of the record and the parties' briefs, we affirm the judgment of the trial court.
Sullivan
Court of Criminal Appeals
Jackie Wright & Kimberly Green vs. Azalea Rains E2002-01107-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: William H. Russell
Cager M. Casey ("Deceased") executed a revocable inter vivos trust agreement in July of 1992. The trust named a number of family members and friends as beneficiaries ("Appellees"). In January of 1999, Deceased executed a will. While this will does not specifically reference the trust, it does direct Deceased's PaineWebber stock be sold at his death and the proceeds given to Jackie L. Wright, Kimberly A. Green ("Appellants") and other members of the Wright family. Deceased owned no stock in PaineWebber. However, the trust was administered by UBS PaineWebber, Inc. ("PaineWebber"). Appellants submitted the 1999 will for probate and were granted letters testamentary. PaineWebber refused to turn over the trust investments absent court order. Appellants sued Appellees and PaineWebber. After trial, the Probate Court entered its judgment on November 29, 2001, holding the 1999 will did not alter the trust and the trust would, by its terms, distribute the trust assets to the trust beneficiaries. Appellants appeal the November 29, 2001 judgment. We affirm.
Loudon
Court of Appeals
Wanda F. Cherry, et al vs. First State Bank E2002-00981-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Ben W. Hooper, II
Wanda F. Cherry and Daniel R. Greene ("Plaintiffs") are the owners of property located on the parkway in Pigeon Forge. Wayne Burroughs ("Burroughs") owned property adjacent to the Plaintiffs' property, but Burroughs' property did not adjoin the parkway. Burroughs leased Plaintiff's property and used their property and his property to operate a business. During this time, Burroughs borrowed money from First State Bank ("Defendant"). Burroughs' leasehold interest in Plaintiffs' property was part of the collateral for this loan. After Burroughs filed for bankruptcy, his leasehold interest in Plaintiffs' property was sold at auction. Defendant was the highest bidder at the auction. Defendant paid rent for a period of time, but then stopped paying rent. Plaintiffs sued for past due rent. The Trial Court granted summary judgment to Plaintiffs and awarded damages totaling $127,968.60. Defendant appeals the grant of summary judgment to Plaintiffs. We affirm.
Sevier
Court of Appeals
Taylor & Fleishman vs. Kenneth Seaton E2002-00075-COA-R3-CV
Authoring Judge: Sr. Judge William H. Inman
Trial Court Judge: Sharon J. Bell
This is a suit to recover a contractual attorney fee. By virtue of circumstances plaintiff Dudley Taylor had the exclusive standing to contest a petition for the involuntary bankruptcy of Taylor and Associates, LLP, from whom defendant and five other individuals had received preferential payments which were required to be returned to the Trustee if the bankruptcy was approved. Conversely, if the bankruptcy was not approved, the defendant and others similarly situated would retain the preferential payments. The plaintiffs had invested a substantial sum with Taylor and Associates, LLP, but had received no preferences. Dudley Taylor devised a plan whereby, for a fee, he would intervene in the bankruptcy and oppose it, and if he were successful the defendant would retain the preferential payments. The defendant proposed a contract by which the plaintiff, for a non-refundable up-front fee of $100,000.00, and a $200,000.00 additional fee contingent upon success, agreed to oppose the bankruptcy as a party litigant. He was successful, but the defendant refused to pay the fee, asserting the invalidity of the contract on various grounds, including ethical considerations. The Chancellor allowed a recovery. We affirm.
Knox
Court of Appeals
In Re: Estate of Donald Henderson, Jeff Henderson vs. Kenneth Henderson E2002-01155-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Edwin C. Harris
Donald Ben Henderson ("Deceased") died in 1998. Jeff Henderson ("Appellant") is the Deceased's grandson. Kenneth Henderson ("Appellee") is the Deceased's son. Appellant and Appellee each submitted documents for probate purporting to be the last will and testament of the Deceased. In total, three wills and a revocation were filed with the Probate Court. The Probate Court entered its Order of Probate on October 18, 2001, holding that none of the three documents submitted should be admitted to probate as the Deceased's will. Based upon this determination, the Probate Court held the Deceased died intestate. More than thirty days after October 18, 2001, Appellee filed a motion to excuse the administrator ad litem and requested he be appointed personal representative of the estate. Appellant opposed the motion and filed a will contest. The Probate Court's order of April 23, 2002, appointed Appellee personal representative of the estate and stated its earlier order holding the Deceased died intestate was a final order. Appellant appealed. Appellee argues this Court lacks jurisdiction to hear the appeal because the notice of appeal was filed late. We hold the notice of appeal was not filed timely. We, therefore, are without jurisdiction to hear this appeal and, accordingly, dismiss the appeal.
Monroe
Court of Appeals
Nancy Webber vs. Gary Webber E2002-01355-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: William E. Lantrip
The Trial Court held it had jurisdiction over marital property and alimony. Husband argued since the divorce was granted in Nevada, the Nevada Decree was res judicata on these issues. We affirm.
Brenda Barton v. Anvil International, Inc., W2001-02523-WC-R3-CV
Authoring Judge: Joe C. Loser, Jr., Sp. 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. In this appeal, the employer insists (1) the trial court erred in considering an examining physician's opinion as not being based on statutory guidelines and (2) the award of permanent partial disability benefits based on 5 percent to one arm and 45 percent to the other arm is excessive.1 As discussed below, the panel has concluded the judgment should be affirmed. Tenn. Code Ann. _ 5-6-225(e) (21 Supp.) Appeal as of Right; Judgment of the Chancery Court Affirmed JOE C. LOSER, JR., SP. J., in which JANICE M. HOLDER, J., and MICHAEL MALOAN, SP. J., joined. Jeffery G. Foster, Jackson, Tennessee, for the appellant, Anvil International, Inc. Scott G. Kirk, Jackson, Tennessee, for the appellee, Brenda Barton MEMORANDUM OPINION The employee or claimant, Ms. Barton, initiated this civil action to recover workers' compensation disability benefits for a work-related injury. The employer, Anvil International, denied liability for permanent disability. After a trial on the merits, the trial court awarded, among other things, benefits based on permanent partial disability to both arms. The employer has appealed. 1 An injury to both arms is a scheduled injury and the better practice is to average the awards to each arm for a single award base d on a per centage of b oth arm s. Scales v. City of Oak Ridge, 53 S.W .3d 649 at n. 1 (Tenn. 2 1). Th e issue d eem ed w aived since it wa s not raised in this a ppe al. For injuries occurring on or after July 1, 1985, 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) (21 Supp.). The reviewing court is required to conduct an independent examination of the record to determine where the preponderance of the evidence lies.
Chester
Workers Compensation Panel
Donna Hardey v. Pml, Inc., Ebi Companies and James W2001-02569-WC-R3-CV
Authoring Judge: W. Michael William Michael Maloan, Special Judge
Trial Court Judge: Julian P. Guinn, Judge
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. _5-6-285 (e)(3) for hearing and reporting to the Supreme Court of findings and fact and conclusions of law. In this appeal the plaintiff, Donna Hardey (Hardey) contends the evidence preponderates in favor of an award in excess of the twenty-five percent (25%) permanent partial disability to the body as a whole awarded by the trial court. For the reasons stated in this opinion, we affirm the judgment of the trial court. Tenn. Code Ann. _ 5-6-225(e) (21 Supp.) Appeal as of Right; Judgment of the Circuit Court Affirmed W. MICHAEL MALOAN, SP. J., in which JANICE M. HOLDER, J. and JOE C. LOSER, JR., SP. J., joined. Ricky L. Boren, Jackson, Tennessee, for the appellant, Donna Hardey. Jeffrey G. Foster, Jackson, Tennessee, for the appellee, PML, Inc. and EBI Companies. E. Blaine Sprouse, Nashville, Tennessee, for the appellee, Tennessee Department of Labor, Workers' Compensation Division MEMORANDUM OPINION The plaintiff, Hardey, was forty (4) years old at trial. She completed the eleventh (11th) grade and obtained a general equivalency diploma. Her work history is mostly manual labor in factories. She began working for PML in November 1994 as a welding machine operator until she was promoted to a group leader. As group leader she was responsible for assigning operators to presses and overseeing their operation. In July 1997 Hardey hurt her neck at PML. Dr. Glenn Barnett diagnosed a herniated C6 disc on the left and on January 26,1998 he performed an anterior cervical discectomy and fusion of the C6-7 discs. She filed a workers' compensation claim which was ultimately settled on January 8, 1999, for twenty percent (2%) permanent partial disability to the body as a whole. Hardey returned to work at PML as a group leader without restrictions. Hardey began to have problems with her right shoulder and arm and returned to see Dr. Barnett on June 25, 1999. Dr. Barnett determined that she had a C5 herniated disc. On October 14, 1999, Dr. Barnett performed as a second operation a discectomy and fusion at the C5-C6 level. As a result of this second surgery, Dr. Barnett assigned an additional five percent (5%) permanent impairment and advised Hardey not to lift in excess of thirty (3) pounds on a regular basis. In June 1999, Hardey complained to Dr. Barnett of right arm and finger numbness. A nerve conduction study showed mild to moderate carpal tunnel syndrome of the right arm. Dr. Barnett did not recommend surgery for this condition. When Dr. Barnett saw Hardey on February 7, 22, he noted she was doing "miserably, was quite uncomfortable, and taking up to fourteen Tylenol per day." Dr. Barnett testified it was not likely she would be able to return to work "unless she gets a dramatic improvement with her nonsurgical treatment of her pain." Due to her chronic pain, Dr. Barnett referred Hardey to Dr. Frank Jordan, a pain specialist. Dr. Jordan saw her on August 22, 21, diagnosed radicular pain, prescribed medication and performed two (2) epidural blocks. Hardey testified she did not get any relief from Dr. Jordan's treatment. Dr. Joseph Boals examined Hardey for an independent medical evaluation on October 3, 2. On examination, Dr. Boals found extensive loss of motion in her neck, hypesthesia in the last three (3) fingers of her right hand, and a positive Phalen's test on the right arm. He assigned a ten percent (1%) permanent impairment for each cervical surgery and an additional ten percent (1%) for chronic pain syndrome. Dr. Boals assigned an additional ten percent (1%) permanent impairment for the carpal tunnel syndrome. As a result of both injuries and surgeries to her neck and her carpal tunnel syndrome, Dr. Boals recommended she not go back to manual labor employment. Her restrictions include no overhead work, no work away from her body, and a weight limit of less than twenty (2) pounds with no repetitive work using her hands or heavy gripping using her hands, and she is suited to only sedentary or light work status. -2-
Benton
Workers Compensation Panel
Sandra Kay Powers, et al. v. American Interstate Insurance Company, et al W2001-02751-WC-R3-CV
Authoring Judge: Joe C. Loser, Jr., Sp. J.
Trial Court Judge: George R. Ellis, 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 competent evidence preponderates against the trial court's finding that the deaths of two employees occurred in the course of their employment and in favor of a finding that the employees had materially deviated from their employment at the time of their deaths in a vehicular accident. As discussed below, the panel has concluded the judgment of the trial court should be affirmed. Tenn. Code Ann. _ 5-6-225(e) (21 Supp.) Appeal as of Right; Judgment of the Chancery Court Affirmed JOE C. LOSER, JR., SP. J., in which JANICE M. HOLDER, J., and W. MICHAEL MALOAN, SP. J., joined. Stephen Craig Kennedy, Selmer, Tennessee, for the appellants, Staton's Home Furnishings and American Interstate Insurance Company Art D. Wells, Jackson, Tennessee, for the appellee, Sandra Kay Powers, as guardian and next friend of Jessica Witherspoon, Billy Joe Witherspoon and Cody Witherspoon, minor children of David Witherspoon, deceased Gayden Drew, Jackson, Tennessee, for the appellee, Robbie McEwen, administrator of the Estate of Timothy Gallimore, deceased MEMORANDUM OPINION By these consolidated civil actions, the claimants sued to recover workers' compensation benefits, as provided by the Workers' Compensation Act, Tenn. Code Ann. _ 5-6- 11 et seq, for the accidental deaths of David Witherspoon and Charles Timothy Gallimore on July 29, 1999. The employer, Staton's Home Furnishings, and its insurer, American Interstate Insurance Company, denied liability. After a trial on the merits, the trial court awarded death benefits to the estate of Gallimore and dependents' benefits to the children of Witherspoon. The employer and its insurer have appealed. For injuries occurring on or after July 1, 1985, 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) (21 Supp.). The reviewing court is required to conduct an independent examination of the record to determine where the preponderance of the evidence lies.
