Melissa Suzanne Dew v. Pro-Temp
E2001-01165-WC-R3-CV
Authoring Judge: Thayer, Sp. J.
Trial Court Judge: Robert M. Summit, Circuit 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- 225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The trial court awarded the employee 2 percent permanent partial disability to her right hand. The employee appeals insisting the court had used the multiplier statute in computing the award and that the statute does not apply to scheduled member injuries. The judgment is modified to award the employee 4 percent to the right hand. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Circuit Court is Modified and Affirmed. THAYER, SP. J., in which ANDERSON, J., and BYERS, SR. J., joined. Roger E. Ridenour, of Clinton, Tennessee, for Appellant, Melissa Suzanne Dew. B. Chadwell Rickman, of Knoxville, Tennessee, for Appellee, Pro-Temp. MEMORANDUM OPINION The trial court awarded the employee, Melissa Suzanne Dew, 2 percent permanent partial disability to her right hand. The employee has appealed insisting the court had restricted her recovery to two and one-half times the 8 percent medical impairment and that the multiplier statute does not apply to scheduled member cases. Facts The employee is a high school graduate and was 26 years of age at the time of the trial. After high school, she had some vocational training in office technology and data processing. She was employed by defendant, Pro-Temp, and was working on the assembly-line at Eagle Bend Manufacturing Company, Inc., on February 5, 1998, when she was injured. The work in progress involved the manufacture of automobile trunk hinges. She testified that the machine had jammed and while working with it, the machine "pinched her." At the time she was wearing gloves but her right index finger was cut and later began to swell. She went to the emergency room and was released to see a regular physician who eventually referred her to an orthopedic surgeon. Dr. John M. Ambrosia, an orthopedic surgeon, testified by deposition and stated he prescribed therapy treatments initially but then recommended surgery since she had not made a lot of progress. Surgery was performed on June 12, 1998, and resulted in freeing up the scar tissue around the extensor tendon and the joint of the finger. After surgery, therapy was resumed and he released her to return to work without any restrictions. The doctor stated she would have a 42 percent impairment to her right finger. The employee was also seen and examined by Dr. Geron Brown, an orthopedic surgeon, for an independent medical examination. He testified by deposition and said she had sustained a crushing injury with laceration and that the fracture of her finger had healed; that she was right hand dominant and the medical impairment would be 42 percent to the finger and 8 percent to the hand. When he was asked about returning to work with restrictions, he replied that because of the limited motion of the hand, there would be activities that she would either have difficulty with or simply could not do. He did not place permanent restrictions because when he saw her she was working at another job although the functional capacity evaluation recommended she should work at a level less than medium work. In describing the present condition of her injury, the employee testified she could not straighten out her finger; that it stayed cold most of the time; that she had problems in gripping things with her hand and that when she used her hand a lot, she would have pain down the center of the palm of her hand. She testified the strength of her hand was not near what it used to be. With regard to the pain down the center of the palm of her hand, she said she had been told this was because of the tendon on the front side of her finger. In rendering a decision, the trial judge originally awarded the employee 42 percent disability to the right hand. Upon defense counsel inquiring if he had made a mistake in the 42 percent award since this exact percent was given to the finger only, the court retracted the award and asked if the multiplier statute applied. When advised it had no application to a scheduled member injury, the court announced the award would be fixed at 2 percent to the right hand. After entry of the judgment, the employee filed a motion for new trial insisting the recovery had been reached by using the multiplier of two and one-half times the 8 percent medical impairment. The court stated his decision was not reached by that computation and that he had considered the usual factors in assessing the evidence and fixing the 2 percent disability to the hand. -2-

Ronald Haywood v. Ormet Aluminum Mill Products
W2001-01494-WC-R3-CV
Authoring Judge: L. Terry Lafferty, Senior Judge
Trial Court Judge: C. Creed Mcginley, Judge
In this appeal, the Employer/Defendant asks: (1) Whether the limitations in Tenn. Code Ann. _ 5-6-241(a)(1) apply?; and (2) whether the evidence supports an award of fifty-six percent (56%) to the body as a whole? As discussed below, the Panel concludes the trial court's judgment is affirmed.

State of Tennessee v. Ben Mills
W1999-01175-CCA-R3-CD
Authoring Judge: Presiding Judge Gary R Wade
Trial Court Judge: Judge John P. Colton, Jr.

The defendant, Ben Mills, was convicted of one count of first degree premeditated murder, one count of felony murder, one count of aggravated robbery and two counts of attempted first degree murder. The trial court merged the murder convictions and imposed a sentence of life imprisonment. For the remaining convictions, the trial court imposed sentences as follows: eight years as a standard, Range I offender for aggravated robbery to be served concurrently with the life sentence, and 15 years as a standard, Range I offender for each attempted first degree murder conviction to be served concurrently to each other but consecutively to the sentences for first degree murder and aggravated robbery. The effective sentence, therefore, is life plus 15 years. In this appeal as of right, the defendant contends (1) that the evidence was insufficient to support his convictions; (2) that the trial court erred by failing to instruct the jury regarding all of the lesser included offenses of felony murder; and (3) that the trial court erred by failing to instruct the jury on intoxication. The judgments of the trial court are affirmed. The judgment for first degree murder is modified to reflect that the conviction for felony murder is merged into the conviction for premeditated first degree murder.

State of Tennessee v. Jessie Nelson Hodges
W2001-00871-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Joseph H. Walker, III

A Lauderdale County Grand Jury indicted the defendant for robbery, and following a trial, a Lauderdale County jury convicted the defendant of the offense charged. In this direct appeal, the defendant presents the following issues for our review: (1) whether sufficient evidence was presented at trial to support his conviction; (2) whether evidence introduced at trial was illegally obtained in contravention of the defendant's Fourth Amendment rights; (3) whether the defendant was deprived of an "independent analysis of the evidence"; and (4) whether the trial court improperly instructed the jury. Finding no error in the record, we affirm the defendant's conviction.

Hannah Robinson v. Charles C. Brewer, et al.
W2001-01745-COA-R3-CV
Authoring Judge: Presiding Judge W. Frank Crawford
Trial Court Judge: Judge Roger A. Page

This is an automobile collision personal injury case. Plaintiff-motorist was stopped in a thru-traffic lane over the crest of a hill behind a vehicle attempting to make a left turn off of the highway. The defendant-motorist came over the crest of the hill and struck the plaintiff-motorist in the rear, causing injuries to the plaintiff. Judgment was entered on a jury verdict for the defendant that the defendant was not at fault in the accident. Plaintiff appeals. We affirm.

State of Tennessee v. Damond Lavonzell Macon and Kenneth Ray Woods
W2001-02706-CCA-R3-CD
Authoring Judge: Presiding Judge Gary R Wade
Trial Court Judge: Judge Donald H. Allen
The defendants, Damond Lavonzell Macon and Kenneth Ray Woods, entered pleas of guilt to possession of marijuana and possession of drug paraphernalia. Pursuant to a plea agreement, the defendant Macon received concurrent sentences of 11 months and 29 days on each count, suspended after six months; the defendant Woods received concurrent sentences of 11 months and 29 days, all of which was to be served on unsupervised probation. The charge against Woods for disobeying a stop sign was dismissed as part of the plea agreement. The defendants reserved for appeal the question of whether the stop was based upon a reasonable suspicion supported by specific and articulable facts. See Tenn. R. Crim. P. 37. The judgments are affirmed.

State of Tennessee v. Ralph Dewayne Moore
E1999-02743-SC-R11-CD
Authoring Judge: Justice Adolpho A. Birch, Jr.
Trial Court Judge: Judge E. Eugene Eblen

Ralph Dewayne Moore was indicted and tried on one count of disorderly conduct and two counts of aggravated assault. The jury was instructed that misdemeanor assault and felony reckless endangerment were lesser-included offenses of aggravated assault. Moore was subsequently convicted of disorderly conduct, one count of misdemeanor assault, and one count of felony reckless endangerment. The conviction was affirmed by the Court of Criminal Appeals. On appeal to this Court, Moore contends that: (1) felony reckless endangerment is not a lesser-included offense of aggravated assault; and (2) the evidence presented at trial is insufficient to support the conviction for felony reckless endangerment. We conclude that the offense of felony reckless endangerment is not included within the offense of aggravated assault committed by intentionally or knowingly causing another to reasonably fear imminent bodily injury by use or display of a deadly weapon; thus, we hold that the jury was improperly instructed. As a result of our holding, we find it unnecessary to address Moore's second contention. Accordingly, the judgment of the Court of Criminal Appeals is reversed, and the cause is remanded to the trial court.

Arthur Blair v. Marilyn Badenhope
E1999-02748-SC-R11-CV
Authoring Judge: Justice William M. Barker
Trial Court Judge: Chancellor Thomas R. Frierson, II

This case addresses the applicable standard to modify a child-custody  order awarding custody to a non-parent. In 1993, the child’s natural father agreed to give custody to the child’s maternal grandmother, and a consent order was entered accordingly. The father later petitioned to modify that order, asserting that a material change in circumstances had occurred and claiming that he had a superior parental right to the custody of his daughter. The trial court denied the petition, finding that no material change in circumstances had occurred warranting modification, and a majority of  the Court of Appeals affirmed. We granted the father’s application for permission to appeal and hold that a natural parent cannot generally invoke the doctrine of superior parental rights to modify a valid order of  custody, even when that order resulted from the parent’s voluntary consent  to give custody to the non-parent. Instead, a natural parent seeking to  modify a custody order that grants custody to a non-parent must show that a material change in circumstances has occurred, which makes a change in custody in the child’s best interests. We also affirm the judgment of the Court of Appeals finding that the father has not shown a material change in circumstances that makes a change of custody in his daughter’s best  interests.

Arthur Blair v. Marilyn Badenhope - Concurring/Dissenting
E1999-02748-SC-R11-CV
Authoring Judge: Chief Justice Frank F. Drowota, III
Trial Court Judge: Chancellor Thomas R. Frierson, II

I fully agree with the majority’s conclusion that a natural parent cannot generally invoke the doctrine of superior parental rights to modify a valid order of custody, even when that order resulted from the natural parent’s voluntary relinquishment of custody to the non-parent. I also agree with the majority’s conclusion that, in such circumstances, a natural parent seeking to modify custody must show that a material change in circumstances has occurred, which makes a change in custody in the child’s best interests. I disagree, however, with the majority’s conclusion that Blair has failed to show a material change of circumstances in this case. The factors in the record supporting this conclusion are succinctly summarized in Justice Birch’s dissenting opinion as follows: When Blair originally agreed to surrender custody of Joy to Badenhope, his relationship with his daughter was uncertain and had only begun. Indeed, he apparently did not even see Joy until after her mother’s death. But in the many years that have passed since that time, Blair has expended great effort to create a strong, loving bond with his daughter. That bond has flourished to such a degree that Joy now has expressed an interest in living with Blair. Additionally, Blair has moved to Tennessee to be nearer to Joy, [footnote omitted] and he has purchased a new home in a neighborhood where Joy has many friends. Blair’s relationship with his daughter, his daughter’s interest in living with him, and even his place of residence have changed entirely.

Arthur Blair v. Marilyn Badenhope- Dissenting
E1999-02748-SC-R11-CV
Authoring Judge: Justice Adolpho A. Birch, Jr.
Trial Court Judge: Chancellor Thomas R. Frierson, II

With today’s holding, the majority declares, essentially, that a parent who voluntarily surrenders custody of a child forfeits any right to custody and  from that day forward is shorn of parental status and relegated to a status no better than that of a non-parent, should the parent petition to modify the custody decree. I cannot agree. In my view, this decision condescendingly brushes aside the fundamental and constitutionally-grounded principle  that a parent has a right to raise a child without undue governmental  interference. Likewise, the holding disregards the presumption, widely recognized in law, that a child’s best interests are served most effectively,  where possible, by placement with a fit parent. The majority’s holding places far too little weight on the parent’s fitness to care for the child or the parent’s efforts, no matter how extensive or admirable, to foster and nurture a loving bond with the child. Moreover, my views aside, the majority misapplies its own analysis to reach a result I find to be unsupportable and unjust. For these reasons, I respectfully dissent.

State of Tennessee v. Perry Thomas Randolph
M2000-02293-SC-R11-CD
Authoring Judge: Justice E. Riley Anderson
Trial Court Judge: Judge Leon Burns

We granted review to determine whether a “seizure” within the meaning of the Fourth Amendment to the United States Constitution and article I, § 7 of the Tennessee Constitution occurs when a police officer activates the blue lights on his patrol car and orders a person to stop, but the person flees and does not submit to authority. The trial court suppressed evidence obtained from the defendant after determining that the officer lacked reasonable suspicion, supported by specific and articulable facts, that the defendant had committed a crime before seizing the defendant by activating his blue lights and ordering him to stop. The Court of Criminal Appeals concluded that there was no seizure because the defendant fled and did not yield to the officer’s show of authority and reversed the judgment.

After a thorough review of the record and the relevant authority, we hold that under the circumstances of this case, the defendant was seized when the officer activated the blue lights on his patrol car, ordered the defendant to stop, and pursued him for several blocks. Because the officer lacked reasonable suspicion or probable cause to effect such a seizure, the evidence seized from the defendant was properly suppressed by the trial court. Accordingly, we reverse the judgment of the Court of Criminal Appeals and reinstate the judgment of the trial court.

State of Tennessee v. Jacquie Upchurch Giardina
E2001-00581-CCA-R3-CD
Authoring Judge: Judge J. Curwood Witt, Jr.
Trial Court Judge: Judge James E. Beckner

Convicted by a jury of third-offense driving while under the influence (DUI), the defendant, Jacquie Upchurch Giardina, challenges on appeal the sufficiency of the convicting evidence and her sentence of eleven months and 29 days to be served in confinement. Discerning no error, we affirm the conviction and the sentence.

Yasmond Fenderson v. State of Tennessee
E2001-01088-CCA-R3-PC
Authoring Judge: Judge J. Curwood Witt, Jr.
Trial Court Judge: Judge Richard R. Baumgartner

The petitioner, Yasmond Fenderson, filed a petition for post-conviction relief to challenge his Knox County convictions of second-degree murder and conspiracy to commit second-degree murder. The post-conviction court conducted an evidentiary hearing but denied post-conviction relief. The petitioner appeals and claims the ineffective assistance of trial counsel. Finding that the record supports the post-conviction court's denial of relief, we affirm.

J.Y. Sepulveda v. State of Tennessee
E1999-02766-SC-R11-PC
Authoring Judge: Justice Adolpho A. Birch, Jr.
Trial Court Judge: Judge Rex Henry Ogle

In this post-conviction proceeding, the petitioner alleges that his pre-trial counsel failed to accompany him while he gave statements to the police and that trial counsel failed to offer the testimony of an expert pathologist. These failures, the petitioner asserts, deprived him of the constitutionally-grounded right to the effective assistance of counsel. Our review is guided by the United States Supreme Court's holding in Strickland v. Washington, which requires petitioners alleging ineffective assistance of counsel to prove that counsel's performance "fell below an objective standard of reasonableness" and that the petitioner was prejudiced by the deficient representation. 466 U.S. 668, 687-88, 694 (1984). We readily conclude that pre-trial counsel's representation fell below reasonable standards. Because we hold, however, that the petitioner has failed to prove he was prejudiced by the deficient pre-trial representation, the petitioner is not entitled to the relief sought. As far as trial counsel's failure to offer the testimony of an expert pathologist is concerned, we hold that the petitioner failed to sufficiently articulate this claim in his post-conviction petition. Thus, the trial court properly refused to hear evidence concerning that claim. It results that the denial of post-conviction relief is affirmed.

State of Tennessee v. James Henderson Dellinger and Gary Wayne Sutton - Concurring/Dissenting
E1997-00196-SC-DDT-DD
Authoring Judge: Justice Adolpho A. Birch, Jr.
Trial Court Judge: Judge D. Kelly Thomas, Jr.

I concur with the majority’s opinion affirming the convictions as to both defendants. With regard to the imposition of the death sentences in this case, however, I cannot agree. My concerns, as expressed below, pertain to: (1) the comparative proportionality review protocol imposed by the majority; and (2) the trial court’s refusal, during the sentencing phase, to address a jury question related to the amount of time the defendants would serve under a life sentence.

Kenneth Trivett v. Norman Litchfield
E2000-01307-WC-R3-CV
Authoring Judge: W. Neil Thomas, III
Trial Court Judge: G. Richard Johnson, Chancellor
Although the appellant argues that he was unfairly forced to trial and that the decision of the trial court was improper, no timely notice of appeal was filed. Although this issue was neither briefed nor argued, failure to file a timely appeal is jurisdictional. Consequently, the appeal will be dismissed.

Brian Roberson v. State of Tennessee
M2001-00459-CCA-R3-PC
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Donald P. Harris

The petitioner appeals the trial court's denial of his petition for post-conviction relief. He claims that he received ineffective assistance of counsel. After review, we affirm the judgment of the post-conviction court.

State of Tennessee v. Gregory Scott Payne
M2000-02900-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Walter C. Kurtz

Defendant, Gregory Scott Payne, was indicted by a Davidson County Grand Jury for one count of sexual battery, one count of attempted rape, and two counts of rape. Following a trial, the jury found defendant guilty of one count of sexual battery, a Class E felony, as a lesser-included offense of one of the rape charges, and not guilty of the remaining offenses. The trial court subsequently sentenced defendant as a standard Range I offender to two years in confinement. In this appeal, defendant asserts that (1) the evidence was insufficient to support his conviction, and (2) the trial court erred by denying his motion to strike the victim's testimony or declare a mistrial (based on the failure of the police to produce the taped recording of the victim's statement). Defendant also contends that the trial court erred by imposing the maximum sentence length and by denying him probation or any other form of alternative sentencing. After reviewing the record, we affirm the judgment of the trial court.

Nancy E. Cotter v. Ted A. Burkhalter, et al.
M2000-03183-COA-R3-CV
Authoring Judge: Judge Frank Clement, Jr.
Trial Court Judge: Irvin H. Kilcrease, Jr.
This appeal arises from an action by a Trustee against: (1) Ted A. Burkhalter (Burkhalter), an accountant/attorney, and the accounting firm, Burkhalter, Ryan & Co., P.C., for professional malpractice; (2) Burkhalter, a former co-trustee, for alleged breach of fiduciary duties; (3) Burkhalter and his partner, Linda Resha, in a general partnership, for alleged conspiracy to defraud and convert funds from the trust; and (4) Prudential Securities, Inc. for breach of fiduciary duty by allegedly permitting the diversion of funds by Burkhalter. The Chancery Court granted summary judgment in favor of Burkhalter and Burkhalter-Ryan finding that the malpractice claims were time-barred. The Chancery Court also granted summary judgment in favor of Prudential Securities finding that Prudential had not breached a fiduciary duty to the trust. Following a bench trial on the remaining issues, the Chancery Court found that the plaintiff/appellant was judicially estopped from pursuing the claims against Burkhalter for alleged breach of fiduciary duties as a trustee, and found in favor of Burkhalter and Resha on the claim of conspiracy to divert funds, finding there was insufficient evidence to establish that a conspiracy existed. We affirm.

State of Tennessee v. Jesse R. Scruggs
M2001-00518-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Donald P. Harris

The defendant was convicted of DUI and driving in violation of a Habitual Traffic Offender Order. Based upon our review of the record, we conclude that there is sufficient evidence corroborating the defendant's statement that he was driving. Furthermore, the trial court is presumed to have fulfilled its role as thirteenth juror when, as in the instant case, the trial court overrules a defendant's motion for new trial without comment. The judgment of the trial court is affirmed

Michael Delaney Galligan v. Linda Medders Galligan
M2001-00619-COA-R3
Trial Court Judge: Robert E. Corlew, III

Janet Crame v. Grinnell Corporation
W2001-00542-SC-WCM-CV
Authoring Judge: W. Michaelmaloan, Special Judge
Trial Court Judge: Joe C. Morris, Chancellor
In this appeal, the employer, Grinnell Corporation, contends the evidence preponderates against the trial court's award to the employee, Janet Crame, of twenty-two percent (22%) permanent partial disability to both arms. For the reasons stated in this opinion, We affirm the judgment of the trial court.

Michael John Durant v. Lorrie Diane Durant
M2001-00691-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Carol A. Catalano
This appeal concerns the dissolution of a twelve-year marriage. The trial court granted the husband a divorce on the grounds of inappropriate marital conduct. The court distributed the parties' property and awarded custody of the couple's two minor children to the husband. The court also enforced a contract the parties entered into prior to the divorce wherein the husband agreed to purchase the wife's share of the marital residence. The wife appeals. We affirm the trial court.

Gregory Pigg v. State of Tennessee
M2001-01423-CCA-R3-PC
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Judge Stella L. Hargrove

The petitioner originally pled guilty to aggravated rape and, by agreement, was sentenced to fifteen years imprisonment. Petitioner timely sought post-conviction relief, which was denied by the post-conviction court. In this appeal, the petitioner contends he received ineffective assistance of counsel. We disagree and affirm the judgment of the post-conviction court.

Jeffrey Crouch, et al v. Bridge Terminal Transport, Inc.
M2001-00789-COA-R3-CV
Trial Court Judge: Irvin H. Kilcrease, Jr.
This appeal involves a trial court's refusal to grant class action status to plaintiffs' claims for breach of contract and promissory fraud. Plaintiffs filed suit against defendant alleging that identical contracts between proposed class members and defendant were breached and that defendant's conduct amounted to promissory fraud. The trial court held that plaintiffs failed to show that issues of law and fact common to the class predominated over individual questions and refused to certify the class. Plaintiffs were granted this interlocutory appeal to review the trial court's decision on class certification. For the following reasons, we affirm the decision of the trial court.