David Pitts v. Floyd Blackwell M2000-01733-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Floyd Don Davis
This appeal involves the decision of a probate court to approve the amended first and final accounting of a conservatorship and award attorney's fees for the conservator's defense of the accounting. The conservator, owner of a funeral home, conducted a $26,367.75 funeral for the conservatee. An interested party objected to approval of the funeral expenses and a hearing was held. The probate court ordered the conservator to return the proceeds from a prepaid burial life insurance policy to the estate, but confirmed the accounting in all other respects. For the following reasons, we affirm in part, reverse in part, vacate in part and remand for further proceedings.
Franklin
Court of Appeals
Ishaaq (aka Alonzo Stewart) v. Dept. of Correction, et al. M2000-01957-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Carol L. Mccoy
Ishaaq, a prisoner in the Department of Corrections serving a combined 130 year sentence for Class X felonies committed prior to July 1, 1982, seeks to rescind a waiver by which he chose, in 1987, to gain the sentence reduction credit benefits applicable to him under Tennessee Code Annotated section 41-21-236. He seeks to rescind the waiver under the belief that he would thereby become eligible for mandatory parole. The trial judge dismissed his complaint, and we affirm the action of the trial court.
After a jury trial, the defendant, a juvenile at the time of the offenses, was convicted of six counts arising out of the shooting deaths of two victims. The jury sentenced him to life in prison for Count One, first degree premeditated murder of the first victim, and for Count Two, first degree felony murder of the first victim based upon robbery of the first victim. The jury sentenced him to life in prison without the possibility of parole for Count Three, first degree felony murder of the second victim based upon premeditated murder of the first victim, and for Count Four, first degree felony murder of the second victim based upon robbery of the first victim. The trial court merged the conviction for Count Two into Count One, and the conviction for Count Four into Count Three. The trial court sentenced the defendant to twenty (20) years for Count Five, especially aggravated robbery, one (1) year for Count Six, possession of marijuana with intent to resell, and ordered the sentences to be served concurrently. On appeal, the defendant challenges the trial court's denial of his motion to suppress and his request for a state-funded mitigation expert, as well as the sufficiency of the evidence to support his convictions for first-degree murder. After careful review of the record, we hold that the trial court did not err in failing to suppress the defendant's statements. Further, we hold that although the defendant's status as a non-capital defendant did not preclude him from receiving state-funded expert services, our de novo review of the record reveals that the defendant failed to make the required showing of a particularized need for a mitigation expert. Therefore, the trial court's denial of the defendant's request for such services was correct. Finally, we hold the evidence is sufficient to sustain the defendant's convictions for premeditated and felony murder in the first degree. Accordingly, we affirm the judgments of the trial court.
The Defendant, Tony D. Johnson, was convicted by a Shelby County jury of felony possession of cocaine with intent to sell. After a sentencing hearing, the Defendant was sentenced to ten years as a Range I standard offender. In this appeal as of right, the Defendant contends that (1) the evidence presented at trial is insufficient to support the jury’s verdict of guilty beyond a reasonable doubt and (2) the trial court erred in imposing a ten year sentence. We affirm the judgment of the trial court.
Shelby
Court of Criminal Appeals
State of Tennessee v. Ronald Dotson W2000-03115-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Joseph B. Dailey
A Shelby County jury convicted the Defendant of aggravated robbery, and the trial court sentenced him as a repeat violent offender to life imprisonment. In this appeal as of right, the Defendant argues (1) that insufficient evidence of his identity as the perpetrator was presented at trial and (2) that there was a material variance between the indictment and the proof at trial. Having reviewed the record, we conclude (1) that sufficient evidence was presented to support the Defendant's conviction and (2) that a variance between the indictment and the proof at trial existed, but that the variance did not affect the substantial rights of the Defendant and thus was not fatal. We therefore affirm the judgment of the trial court.
Shelby
Court of Criminal Appeals
Washshukru Al-Jabbar vs. State W2001-02049-COA-R3-CV
Authoring Judge: Judge David R. Farmer
This is an appeal from an order of the Claims Commission granting summary judgment in favor of the Defendant. The claim was brought by an inmate in the custody of the Tennessee Department of Correction claiming that employees of the Department lost two pages of pleadings he filed in an action in circuit court.
Lauderdale
Court of Appeals
State Children Serv. vs. Donald Grant W2001-01934-COA-R3-JV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Christy R. Little
This case involves the termination of parental rights. The child was voluntarily placed in the custody of the Department of Children's Services in April 1996 due to the parents' substance abuse. A petition was filed to terminate the parental rights of both parents. The mother's parental rights were terminated by default, but the petition was dismissed as to the father. The trial court then ordered visitation and child support. The father stopped making visits after two months and failed to pay any child support. A second petition to terminate the father's parental rights was filed on the grounds, inter alia, of abandonment and that the conditions which led to the child's removal persisted and were unlikely to be remedied. The trial court granted the petition to terminate parental rights and the father appeals. We affirm, finding clear and convincing evidence to support the termination of the father's parental rights.
Madison
Court of Appeals
Candace Fleck vs. Cooper Realty W2001-00465-COA-R3-CV
Authoring Judge: Judge W. Frank Crawford
Trial Court Judge: D'Army Bailey
Plaintiff allegedly sustained injuries at Mid Memphis Tower Building when she exited an elevator which failed to level. She and her husband sued the building's management company and the company that owns the manufacturer of the elevator. The suit against the elevator company alleges that the company was negligent "by failing to insure that the elevator in question was properly inspected, maintained, and repaired." The elevator company's interrogatories, inter alia, requested the identity of any expert witness the plaintiffs planned to use at trial. Plaintiffs answered this interrogatory in December, 1998: "Plaintiffs have not identified such individuals at this time." The interrogatories were never supplemented, and the case was set for trial on December 1, 1999. In October, 1999, the elevator company filed a motion for summary judgment on the ground that the lack of an expert witness prevented plaintiffs from proving essential elements of the case. Plaintiffs were granted additional time within which to obtain an expert witness and subsequently announced that plaintiffs did not intend to have an expert witness. The trial court granted summary judgment to the elevator company. Subsequently, the building's management company settled its case and upon dismissal of that suit, the grant of summary judgment became final. Plaintiff-wife appealed. We reverse.
Shelby
Court of Appeals
Angela Phillips vs. William Phillips W2001-01685-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Daniel L. Smith
This appeal arises from a divorce proceeding wherein the parties had two minor children. While the divorce was pending, the trial court issued a temporary order outlining the custodial rights of the parties with respect to their children. The final decree of divorce adopted a permanent parenting plan and distributed the marital property and debts. The husband filed this appeal contesting the permanent parenting plan and the manner in which the marital debts were apportioned. For the following reasons, we affirm the decision of the trial court
Indicted for the offense of premeditated first degree murder, defendant was convicted of the lesser-included offense of second degree murder and sentenced to twenty-three years. In this appeal as of right, defendant presents the following issues: (1) whether the evidence was sufficient to support the verdict; (2) whether the trial court erred in failing to grant a mistrial when the state referred to defendant's being in jail pending trial; (3) whether the trial court erred in admitting defendant's prior misdemeanor convictions for impeachment purposes; (4) whether the trial court erred in failing to grant a mistrial when the prosecutor misstated the evidence in final argument; (5) whether the trial court erred in failing to grant a mistrial when extraneous prejudicial information was present during jury deliberations; and (6) whether the sentence was excessive. We find no error and affirm the judgment of the trial court.
Madison
Court of Criminal Appeals
Debbie Risner vs. Nathan Harris W2001-01041-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: William B. Acree
This is an action to recover personal property. The plaintiff and defendant lived together for seventeen years. In November 1999, the plaintiff moved out. She left personal property in the trailer in which the couple was living, in the nearby convenience store owned by the defendant, and in a storage unit in another town. In August 2000, the convenience store caught on fire, and the plaintiff's personal property in the store was destroyed. Soon thereafter, the defendant took possession of the plaintiff's other personal property that had been held in the storage unit and called her to come get it. In November 2000, the plaintiff filed a warrant in general sessions court to recover her personal property from the defendant. She claimed that the defendant had prevented her from retrieving any of her personal property. She received a judgment which was appealed to circuit court. The circuit court entered a judgment in favor of the plaintiff, awarded damages, and ordered the defendant to return certain items to the plaintiff. The defendant now appeals. We reverse the trial court's decision with respect to two of the items ordered returned and the property that the plaintiff had kept in the storage unit in another town, and affirm the remainder of the order.
This case involves a medical malpractice claim that was dismissed on summary judgment by the trial court. The plaintiff, Steffone McClendon, appealed to this Court, seeking a reversal of the trial court’s summary judgment. We affirmed the trial court’s decision based on the legislative history and our interpretation of Section 20-1-119 of the Tennessee code. The plaintiff sought a review of this Court’s decision with the Tennessee Supreme Court. Although the supreme court refused to hear the case, it remanded the case to this Court for reconsideration in light of Townes v. Sunbeam Oster Co., Inc., 50 S.W. 3d 446 (Tenn. Ct. App. 2001) released this year by the middle section of this Court and recently published.
Knox
Court of Appeals
Harrison Driver v. Bridgestone/Firestone, Inc. M2000-02944-WC-R3-CV
Authoring Judge: Gayden, Sp. J.
Trial Court Judge: Hon. Don R. Ash, Judge
The employer argues that the employee's pre-existing condition was not advanced, progressed, or anatomically changed during his employment at Bridgestone. In the face of conflicting medical testimony, the trial court found in favor of the employee, awarding $13,766 for a 7% permanent disability to his body as a whole. Relying on the employee's own medical testimony as well as an opinion of one of the testifying physicians, concluding that the employee's injury more probably than not was a result of his employment, the Panel affirms the trial court's finding that the employee suffered a compensable injury while at work.
The defendant appeals the denial of probation for the five-year sentence he received for sexual battery by an authority figure, a Class C felony. He asserts that the record fails to support a conclusion that the statutory presumption of his eligibility for alternative sentencing has been rebutted. We modify the term of confinement and order supervised probation forthwith and remand the case to the trial court for imposition of appropriate conditions.
Davidson
Court of Criminal Appeals
Nathaniel Hampton v. Connecticut Indemnity Company W2000-02057-WC-R3-CV
Authoring Judge: Joe C. Loser, Jr., Sp. J.
Trial Court Judge: John R. Mccarroll, Jr., 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. In this appeal, the employee insists the evidence preponderates against the trial court's finding that he did not suffer a permanent injury. As discussed below, the panel has concluded the judgment should be affirmed. Tenn. Code Ann. _ 5-6-225(e) (2) Appeal as of Right; Judgment of the Circuit Court Affirmed. JOE C. LOSER, JR., SP. J., in which JANICE M. HOLDER, J., and ROBERT L. CHILDERS, SP. J., joined. Steve Taylor, Memphis, Tennessee, for the appellant, Nathaniel Hampton Jeffery G. Foster, Jackson, Tennessee, for the appellee, Connecticut Indemnity Company MEMORANDUM OPINION On or about June 7, 1999, the employee or claimant, Hampton, strained his knee at work. He reported the accident to his employer, who provided medical care, including diagnostic testing and physical therapy. A Magnetic Resonance Imaging scan revealed no abnormality. Dr. James Varner viewed the test report and examined the claimant, but found no evidence of a permanent injury. Dr. Joseph Boals examined the claimant and found minimal tenderness over the injured knee and guessed the claimant's permanent impairment at 5 percent, based on subjective complaints. Accepting the medical testimony of Dr. Varner, the trial court found that the evidence failed to establish the probability of a permanent injury. 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). This tribunal is not bound by the trial court's findings but instead conducts an independent examination of the record to determine where the preponderance lies. Galloway v. Memphis Drum Serv., 822 S.W.2d 584, 586 (Tenn. 1991). Where the trial judge has seen and heard the witnesses, especially if issues of credibility and weight to be given oral testimony are involved, considerable deference must be accorded those circumstances on review, because it is the trial court which had the opportunity to observe the witnesses' demeanor and to hear the in-court testimony. Long v. Tri-Con Ind., Ltd., 996 S.W.2d 173, 178 (Tenn. 1999). The appellate tribunal, however, is as well situated to gauge the weight, worth and significance of deposition testimony as the trial judge. Walker v. Saturn Corp., 986 S.W.2d 24, 27 (Tenn. 1998). The extent of an injured worker's vocational disability is a question of fact. Story v. Legion Ins. Co., 3 S.W.3d 45, 456 (Tenn. 1999). The claimant seeks an "in-depth review" of the evidence to determine where the preponderance of the evidence lies.
Shelby
Workers Compensation Panel
Town of Greeneville vs. Jack Cobble, et ux E2001-00869-COA-R9-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Kindall T. Lawson
Trial Court refused to grant partial summary judgment as to the extent of land taken. On appeal, we reverse.
Greene
Court of Appeals
E2001-01363-COA-R3-JV E2001-01363-COA-R3-JV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: Tom Wright
Greene
Court of Appeals
Monroe Davis vs. State E2001-02032-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
The plaintiff, Monroe E. Davis is a prisoner in state custody. He filed a complaint with the Tennessee Claims Commission ("the Claims Commission") against the State of Tennessee and the warden of the facility at which he is incarcerated, seeking damages for the alleged detention and/or conversion of his personal property by the warden. The Claims Commission granted the defendants' motion to dismiss. We affirm.
Court of Appeals
Johnson vs. CCA W2001-00595-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Jon Kerry Blackwood
This is an appeal from an order of the trial court granting a motion to dismiss the complaint for failure to state a claim upon which relief can be granted. We reverse in part and affirm in part.
The petitioner appeals the denial of his petition for post-conviction relief. The petitioner pled guilty to ten counts of rape of a child. On appeal, the petitioner raises the issues of whether the post-conviction court erred in finding that he received the effective assistance of counsel and whether his guilty plea was entered voluntarily and knowingly. After a thorough review, we affirm the judgment of the post-conviction court.
The defendant appeals his premeditated first degree murder and abuse of a corpse convictions for which he received concurrent sentences of life imprisonment and two years, respectively, arguing: (1) the trial court erred in not enforcing a plea agreement; (2) the evidence was not sufficient to support his convictions; (3) hearsay evidence of the victim’s statements was erroneously admitted; (4) evidence obtained via wiretaps was erroneously admitted; (5) evidence regarding defendant’s alleged romantic relationship with a woman other than his wife was erroneously admitted; and (6) the trial court should have charged the jury regarding alibi. We affirm the judgment of the trial court.
I concur in all respects save one. I seriously question the conclusion that all of the victim’s statements to her mother were admissible as excited utterances. A declarant’s opinion about who caused an event would ordinarily not be admissible even if the declarant appeared and testified at a trial. Here, I do not believe that the victim’s opinion about who started the fire was admissible. However, given the location and timing of the fire, the inferences drawn by the victim as to the potential cause of it would be obvious to the jury in any event. Thus, I do not believe that the error affected the verdict.
The petitioner appeals from the trial court's denial of his petition for writ of error coram nobis. In his petition, he alleged that his conviction should be set aside because the victim had recanted his testimony. Following a hearing, the trial court denied relief and the petitioner appealed. After a thorough review, we affirm the court's order of denial.
Davidson
Court of Criminal Appeals
Diana Noles v. Ameristeel Corporation W2001-00406-WC-R3-CV
Authoring Judge: L. Terry Lafferty, Senior Judge
Trial Court Judge: C. Creed Mcginley, Judge
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel in accordance with Tennessee Code Annotated _ 5-6-225(e)(3) for a detailed analysis of the evidence in the trial record. The trial court in this cause found that Plaintiff sustained a thirty-five percent (35%) permanent partial disability to the right and left arm. Defendant, Ameristeel Corporation, appeals and asserts that the trial court's award of thirty-five percent (35%) permanent partial disability to each arm is excessive and not supported by a preponderance of the evidence. From our review of the entire record and applicable law, the judgment of the trial court is affirmed as modified. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Circuit Court is Affirmed as Modified. L. TERRY LAFFERTY, SR. J., in which JOE C. LOSER, JR., SP. J., and JANICE M. HOLDER, J., joined. John D. Burleson and L. Beth Williams, Jackson, Tennessee, for the appellant, Ameristeel Corporation. Paul Todd Nicks, Jackson, Tennessee, for the appellee, Diana Noles. MEMORANDUM OPINION Diana Noles (Parker), age 43, a high school graduate, testified that she has a varied employment background since high school. Plaintiff has worked as an office employee as well as performing manual labor in factories. Prior to 1993, she lived in Addison, Illinois, and moved to Tennessee that year with her ex-husband.1 Prior to her employment with MRT and Defendant, who 1The Plaintiff was a single mother up and until her marriage three months prior to trial. took over MRT, Plaintiff worked for Johnson Controls in Lexington, Tennessee, testing seat tracks for cars. When Plaintiff went to work for MRT, she was a "B" operator. This work consisted of shoveling, squeegeeing off the floor, pulling samples, and driving a forklift and front end loader. She became an "A" operator in the control room, but when Defendant took over MRT, she was transferred back to a "B" operator. Plaintiff's primary work responsibility was to keep the seal pans clean, unload coal trucks, fill charge buckets, and shovel and hoe out the seal pans which would accumulate mud. Also, this cleaning process required the use of a three-inch vacuum hose. Twenty- five percent (25%) of her work consisted of this repetitive shoveling, hoeing and vacuuming of the seal pans. Prior to February of 1999, Plaintiff had no work-related injuries. In January 1999, she advised her supervisors that her right arm felt like dead weight and was numb. She saw her family doctor who advised her that she may have carpal tunnel and to advise her employer. The company sent her to see Dr. Kenneth Warren, who referred her to Dr. Ronald Bingham for carpal tunnel testing. As a result of the test, Dr. Warren referred Plaintiff to Dr. Claiborne Christian for carpal tunnel syndrome. Eventually, Dr. Christian performed surgery on her right arm on Friday, February 26, 1999. She returned to light duty the following Monday and remained on light duty for six weeks. During this six weeks, Plaintiff was still seeing Dr. Christian every couple of weeks until she was returned to full duty. Her shoulder pain and numbness went away after surgery. Plaintiff testified that in June 1999, she began developing numbness and pain in her left hand. The company referred her back to Dr. Christian. After seeing Dr. Christian a number of times and having another test, Dr. Christian performed surgery on her left hand. Plaintiff returned to full duty in April 2. Since both surgeries, Plaintiff testified that she has re-occurring numbness/tingling, more in the right hand than the left. The numbness has affected her work and home chores in that while performing shoveling or vacuuming, she must stop and rest. She has not complained to her supervisors, as she does not want to sound "whiny." On behalf of Defendant, Mr. Jimmy Sloop, plant superintendent, testified that Plaintiff is one of his best employees. She does a good job, does not complain and approximately twenty-five percent (25%) of her work is repetitive. He would be happy to recommend her for an "A" operator position, but there are no openings and none seem to be available in the immediate future. Mr. Sloop confirmed that Plaintiff worked a twelve-hour shift, three days a week and averaged 1.3 hours of overtime daily. MEDICAL EVIDENCE Plaintiff was seen, initially, by Dr. Warren on February 9, 1999, who referred her to Dr. Bingham for a nerve conduction test. As a result of the test indicating severe entrapment neuropathy of the median nerve in right wrist, Dr. Warren referred Plaintiff to Dr. Christian for possible carpal tunnel release. Dr. Christian, an orthopedic specialist, filed a C-32, Department of Labor Standard Form Medical Report for Industrial Injuries on October 16, 2. Utilizing the AMA Guidelines for evaluation of permanent impairment, Dr. Christian opined that Plaintiff sustained a two percent (2%) -2-
Carroll
Workers Compensation Panel
Chantal Eldridge v. Putnam County M2000-02963-COA-R3-CV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: Vernon Neal
This is a case about the Open Records Act as applied to the telephone records of a Drug Task Force. After the Chancery Court of Putnam County ordered the County to produce the records, the County appealed, arguing that the records fit an exception to the Act or that the County should be able at the plaintiff's expense to redact the records to delete confidential information. We modify the chancellor's order to allow the County to redact the records at their own expense.
