Ancro Finance vs. Kevin Johnson vs. Dyncorp W2000-02709-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: John R. Mccarroll, Jr.
This appeal involves the dismissal of a petition for writs of certiorari and supersedeas brought by a garnishee in circuit court. After the garnishee failed to attend a hearing in general sessions court, a final judgment was entered. Instead of appealing the judgment as a matter of right to the circuit court, the garnishee petitioned the court for writs of certiorari and supersedeas. The circuit court dismissed the garnishee's petition. Because the garnishee failed to show proper grounds for writs of certiorari and supersedeas in lieu of an appeal, we affirm the decision of the circuit court.
Shelby
Court of Appeals
Richard Norton vs. Randy Eckman W2001-00762-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Jon Kerry Blackwood
The Plaintiff, an inmate in a correctional facility, has appealed the trial court's grant of Defendant's motion to dismiss for failure to state a claim upon which relief can be granted. We reverse the order of dismissal and remand to the trial court to dispose of the Plaintiff's summary judgment motion.
Hardeman
Court of Appeals
Judith Thomas vs. William Thomas E2001-00191-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Dennis W. Humphrey
This is a post-divorce proceeding. Judith R. Thomas ("Mother") filed a petition for contempt and for an increase in child support. William A. Thomas ("Father") answered and filed a counterclaim, seeking a decrease in his support obligation. Following a bench trial, the court below determined that while Father had failed to comply with some of the provisions of the parties' marital dissolution agreement ("MDA"), his failure to comply was not willful; therefore, the court declined to hold him in contempt. The court also held that Father's child support obligation should not be changed. Both parties raise issues on this appeal. We affirm.
Roane
Court of Appeals
Bill Campbell, Executor, vs. Blount Memorial Hospital E2001-00717-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: W. Dale Young
Patient sustained injuries in defendant's emergency room. The Trial Court granted a Tenn. R. Civ. P. Rule 41.02(2) Motion to defendant. Plaintiff appealed. We affirm.
Blount
Court of Appeals
Mickey Joe Hall vs. Kimberlie Kae Davenport Hall E2009-01889-COA-R3-CV
Authoring Judge: Charles D. Susano, Jr., J.
Trial Court Judge: Michael W. Moyers, Chancellor
This is a post-divorce child support modification case. Kimberlie Kae Davenport Hall ("Wife") filed a petition against her former husband, Mickey Joe Hall ("Husband"), seeking an increase in child support. Wife's petition, filed October 23, 2001, was followed by numerous hearings before special masters over the course of several years. The masters filed reports from each of the hearings, all of which were objected to by one or both of the parties. Interspersed among the masters' hearings, the trial court addressed various matters including the issue of child support. On January 23, 2009, the trial court held a hearing at which it ruled that the Income Shares formula for calculating child support under the Child Support Guidelines ("the Guidelines") as they existed at the time of the hearing, i.e., on January 23, 2009, was applicable to the calculation of support for the period from November 1, 2001, forward. The final order being appealed by Wife applied the formula and determined that Husband had overpaid his child support by $27,377.25. The court allowed Wife certain offsets which reduced the final judgment against Wife to $24,810.65. We affirm in part and vacate in part and remand for an upward modification of Husband's support due to a "hardship" imposed on Wife by the rigid application of the Income Shares formula.
Knox
Court of Appeals
In re: Z.C.G. M2000-02939-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Tom E. Gray
This case involves a request for termination of parental rights and adoption of a minor child. Appellees/Petitioners are the mother of the minor child at issue and her current husband. They petitioned for termination of the natural father's parental rights and for adoption by her current husband. The trial judge granted their petition finding that the father had abandoned his child by willfully failing to visit for four months preceding the filing of the petition and that termination of parental rights was in the best interest of the child. We find that the evidence did not clearly and convincingly demonstrate that the father willfully failed to visit and, thus, reverse the trial court.
Sumner
Court of Appeals
Frederic R. Harris, Inc. vs. Metro Gov. of Nashville/Davidson County M2000-02421-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Carol L. Mccoy
Plaintiff sued for payments under contract. The Trial Court held defendant was not liable for additional payments under the contract. We affirm.
Davidson
Court of Appeals
In re: Estate of William D. Neely M2000-01144-COA-R3-CV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: Robert E. Corlew, III
The trial court set aside a will that was executed shortly before the testator's death, on findings of confidential relationship, suspicious circumstances and undue influence. We affirm.
Rutherford
Court of Appeals
Thelma Smith vs. David Riley E2001-00828-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Jerri S. Bryant
The plaintiff, Thelma Agnes Smith, lived with the defendant out of wedlock for several years. When the relationship ended, she brought this action seeking to enforce two written agreements with him regarding the sale and assignment of property to her. The trial court enforced the agreements and divided the parties' property. The defendant appeals, arguing that the agreements lack consideration and are void as against public policy. We affirm.
Monroe
Court of Appeals
Susan Vermillion vs. Guy Vermillion E2001-00241-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: Thomas J. Seeley, Jr.
Guy Houston Vermillion, an inmate in the State's penal system, appeals a judgment of the Chancery Court for Johnson County which awarded his wife a divorce. He insists that he was entitled to be present and present his defense, particularly as it applies to the division of property. We vacate the judgment and remand the case for the Trial Court to make a determination of whether it is appropriate to stay disposition of the case pending Mr. Vermillion's release.
This is a state appeal from the dismissal of an indictment based upon a violation of mandatory joinder Rule 8(a) of the Tennessee Rules of Criminal Procedure. The defendants, Baird and Fisher, and other individuals were first indicted on July 23, 1999, for aggravated gambling promotion. The indictment alleged the illegal activity occurred from August 1998 through December 1998. On October 18, 1999, the defendants pled guilty to aggravated gambling promotion. The defendants and other individuals were again indicted for aggravated gambling promotion on March 21, 2000. This indictment alleged the illegal activity occurred from January 1999 through June 1999, which was prior to the return of the first indictment. The trial court dismissed the second indictment, finding that it violated Rule 8(a) requiring joinder. After a thorough review of the record, we affirm the judgment of the trial court.
Davidson
Court of Criminal Appeals
Kary Ray Frazier v. Bridgestone/Firestone, Inc., M2000-02126-WC-R3-CV
Authoring Judge: Joe C. Loser, Jr., Sp. J.
Trial Court Judge: Charles D. Haston, Judge
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel in accordance with Tenn. Code Ann. _ 5-6-225(e)(3) for hearing and reporting of findings of fact and conclusions of law. In this case, the employer and its insurer contend (1) the trial court erred by referring the case to a special master for trial of all issues raised by the pleadings, (2) the evidence preponderates against the special master's finding, adopted by the trial court, that the injured employee has a permanent medical impairment of 13 percent to the body as a whole, and (3) the evidence preponderates against the trial court's award of permanent partial disability benefits based on 32.5 percent to the body as a whole. As discussed below, the panel has concluded the award of permanent partial disability benefits should be reduced to one based on 2 percent to the body as a whole. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Circuit Court Affirmed as Modified. JOE C. LOSER, JR., SP. J., in which FRANK F. DROWOTA, III, J., and HAMILTON V. GAYDEN, JR., SP. J., joined. Mary B. Little and B. Timothy Pirtle, McMinnville, Tennessee, for the appellants, Bridgestone/Firestone and Insurance Company of the State of Pennsylvania. William Joseph Butler and Frank D. Farrar, Lafayette, Tennessee, for the appellee, Kary RayFrazier. MEMORANDUM OPINION The employee or claimant, Kary Ray Frazier, is 34 years old and a high school graduate with experience as a laborer. On March 2, 1997, while working for the employer, Bridgestone/Firestone, he felt a sudden pain in his left shoulder. At the time of the injury, he was reaching out at shoulder level to spin heavy tires to position them properly for branding. He was surgically treated by Dr. David Bratton and Dr. Wills Oglesby, but has seen a number of doctors for treatment or evaluation. Although Dr. Bratton released a ligament and removed a bone and bursa from the injured shoulder, he found no basis for a permanent impairment rating, based on passive range of motion testing. He conceded that he did not use AMA guidelines. Dr. Oglesby later performed open reconstructive surgery to relieve pain and looseness in the injured shoulder. Dr. Oglesby assigned an impairment rating of 6 percent to the body as a whole, based on loss of motion, also using a passive test. He conceded the AMA guidelines favor active range of motion testing, where the patient moves the limb as far as his condition will allow. In passive testing, the doctor moves the limb. Dr. Calvin Robinson Dyer, another orthopedic surgeon, evaluated the claimant. Dr. Dyer estimated the claimant's permanent impairment at 16.2 percent to the body as a whole and opined the injury was causally related to the work the claimant was performing when he felt the sudden pain. Dr. Dyer also prescribed permanent restrictions on the use of the injured shoulder. Dr. Dyer `s opinion was discredited on cross examination as inconsistent with the approved guidelines. Dr. Sammy Mac Smith evaluated the claimant and estimated his permanent medical impairment at 12 percent to the whole body. Dr. Smith's rating was based on AMA guidelines. Dr. James Talmadge, to whom the claimant was also referred for the purpose of evaluation, assigned a permanent whole person impairment rating of 4 percent, also using AMA guidelines. The employee has returned to work at the same or greater wage. Mr. Frazier initiated this civil action to recover workers' compensation benefits for a work- related injury. The defendants answered by denying all the material allegations of the complaint. After hearing and ruling on preliminary motions, the trial court, on the day of trial, referred the case to a special master, Richard McGregor, for the purpose of taking proof and submitting findings of fact and conclusions of law as to all issues. The special master conducted hearings and made findings and conclusions. The trial court, after careful consideration of the record, adopted the findings and conclusions of the special master awarding permanent partial disability benefits based on 32.5 percent to the body as a whole. There is a dispute as to whether the employer and its insurer objected to the reference to a special master. The employer insists the reference of the case to a special master was error because of the holding in Ferrell v. Cigna Property & Casualty Ins. Co., 33 S.W.3d 731 (Tenn. 2), wherein the Supreme Court held it was improper to create a "standing order appointing a clerk and master as special/substitute judge to hear an entire class of cases." Ferrell, at 739. By footnote, the Ferrell court said cases should be referred to a special master on a case by case basis. That case did not address the appellants' next insistence, that the reference in the present case was not proper because it referred the main issues in controversy to the special master. By Tenn. R. Civ. P. 53, a court may submit any matter to a special master. Case law, however, both before and after the 1971 adoption of Rule 53, supports the employer's contention that -2-
The petitioner, Parrish L. Jones, appeals the denial of his petition for writ of habeas corpus, claiming that his sentences are illegal and void. Because the convicting court had no jurisdiction to impose an agreed upon sentence in excess of the statutory limits, the judgment is reversed and the cause is remanded for the grant of habeas corpus relief.
The defendant appeals his convictions for first degree premeditated murder, first degree felony murder, and aggravated robbery. He contends that (1) insufficient evidence exists to support his convictions; (2) the trial court erred by not allowing into evidence the guilty plea of co-defendant Dickerson; (3) the trial court erred by not allowing into evidence statements made by co-defendant Dickerson; and (4) the trial court erred in ordering consecutive sentences. After review, we affirm the judgment of the trial court.
An Obion County jury convicted the defendant for one count of felony evasion of arrest, one count of felony reckless endangerment, and one count of misdemeanor evasion of arrest. The trial court sentenced the defendant to six (6) years as a Range II multiple offender for his conviction for felony evasion of arrest, which was merged with his conviction for reckless endangerment. The trial court also sentenced the defendant to eleven (11) months and twenty-nine (29) days for his conviction for misdemeanor evasion of arrest, to be served concurrently with his sentence for his felony conviction. The defendant filed for a motion for new trial, and the trial court held a hearing on that motion on the same date that it held the sentencing hearing. Subsequently, the defendant filed a second motion for new trial, which the court treated as an amended motion for new trial. On appeal, the defendant challenges the sufficiency of the evidence at trial, his sentence, and the trial court's refusal to grant his motion for new trial based on the threatening statements made to jurors during a break in their deliberations. After reviewing the record, we find that none of these claims merit relief and therefore affirm the defendant's conviction.
Obion
Court of Criminal Appeals
State of Tennessee v. Vincent Hatch W2000-01005-CCA-R3-CD
Authoring Judge: Special Judge Cornelia A. Clark
Trial Court Judge: Judge John P. Colton, Jr.
One day before his scheduled jury trial for first degree murder, the appellant sought and was granted the right to represent himself. He now appeals from his conviction by a Shelby County jury for the offense of first degree murder, asserting that the convicting evidence was insufficient and that the trial court denied him his constitutional right to the assistance of counsel. We affirm the judgment of the trial court.
Shelby
Court of Criminal Appeals
Dept. of Children's Services vs. Frances Bates W2001-01267-COA-R3-JV
Authoring Judge: Judge W. Frank Crawford
Trial Court Judge: Rachel J. Anthony
This is a termination of parental rights case. Francis Pyle Bates appeals from the final decree of the Probate and Juvenile Court of Lauderdale County which terminated her parental rights to her three minor children, T. M. P., born March 28, 1991; J. R. P., born August 15, 1992; and R. D. P., born July 25, 1994. For the reasons hereinafter stated, we affirm the trial court's final decree.
Lauderdale
Court of Appeals
Paul Farnsworth vs. Richard Kenya W2001-00961-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
This appeal arises from the Appellees' denial of the Appellant's request to marry during the Appellant's incarceration. The Appellant filed a complaint in the Circuit Court of Lake County against the Appellees for breach of contract and retaliation. The Appellees filed a motion to dismiss claiming that the Appellant failed to exhaust his administrative remedies and failed to state a claim for which relief can be granted. The Appellees filed a motion to stay discovery. The Appellant filed a motion for leave to amend his complaint. The Appellant sought to add new defendants and additional claims that were unrelated to his original claim. The trial court granted the Appellees' motion to dismiss. On appeal, this Court found that the trial court failed to rule on the motion to amend the original complaint. This Court dismissed the appeal on the basis that the order appealed from was not a final judgment. The trial court entered an order granting the motion to stay discovery, denying the motion to amend the original complaint, and dismissing the case. The Appellant appeals the decision of the Circuit Court of Lake County granting the motion to stay discovery, denying the motion to amend the original complaint, and dismissing the case. For the reasons stated herein, we affirm the trial court's decision.
Lake
Court of Appeals
E2001-00150-COA-R3-CV E2001-00150-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Telford E. Forgerty, Jr.
The Defendant was convicted of driving under the influence (D.U.I.) second offense, sentenced to fifty days in jail, and ordered to pay a $2,500.00 fine. The Defendant now appeals, arguing the following: (1) that there was insufficient evidence to convict him of D.U.I., (2) that the trial court erred in admitting the breath alcohol results, and (3) that the trial court erred in not granting a new trial based upon newly discovered evidence. Finding no error, we affirm the judgment of the trial court.
Anderson
Court of Criminal Appeals
Louana Klopfenstein v. Windwood Health Rehab Ctr., E2000-02706-WC-R3-CV
Authoring Judge: John K. Byers, Sr. J.
Trial Court Judge: James B. Scott, Judge
This workers' compensation appeal has been referred to the SpecialWorkers' Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated _ 5-6- 225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Circuit Court Affirmed JOHN K. BYERS, SR. J., in which WILLIAM M. BARKER J., and WILLIAM H. INMAN, SR. J., joined. David M. Sanders, Knoxville, Tennessee, for the appellants, Windwood Health Rehab Ctr., et al. Roger Ridenour, Knoxville, Tennessee, for the appellee, Louana Klopfenstein. MEMORANDUM OPINION Review of the findings of fact made by the trial court is de novo upon the record of the trial court, accompanied by a presumption of the correctness of the findings, unless the preponderance of the evidence is otherwise. TENN. CODE ANN. _ 5-6-225(e)(2). Stone v. City of McMinnville, 896 S.W.2d 548, 55 (Tenn. 1995). The application of this standard requires this Court to weigh in more depth the factual findings and conclusions of the trial courts in workers' compensation cases. See Corcoran v. Foster Auto GMC, Inc., 746 S.W.2d 452, 456 (Tenn. 1988). Discussion The trial court found the plaintiff had suffered a seventy percent permanent partial disability to the right leg and held that Windwood Health Rehab Center was liable for compensation to the plaintiff. The defendant Windwood Health Rehab Center says the trial court erred in not finding the defendant Clinch River Home Health Inc. liable under the last injurious injury rule. We affirm the judgment of the trial court Facts On January 2, 1998, the plaintiff was working for the defendant Windwood when she fell in a shower while assisting a patient and suffered an injury to her right knee. Windwood did not contest the compensability of the injury. Windwood furnished medical care to the plaintiff. She was off from work for a "few weeks," returned to work for a "few weeks" without restriction and left the employment of Windwood after about "two weeks." The plaintiff went to work for the defendant Clinch River in March of 1998. The plaintiff testified that on February 12, 1999, she was giving a patient a bath in the patient's home which required that the patient be placed on a shower chair. According to the plaintiff she heard her knee pop and crack as she was performing this task. The plaintiff testified she went from the patient's home back to Clinch River and reported this incident to Linda Darland, a secretary/receptionist. The plaintiff testified she told Linda Darland that she was at work and her knee began to hurt and swell up. She testified Ms. Darland made a doctor appointment for her. She was treated by Dr. Malagan, who had treated her previously, until he referred her to Dr. Cletus J. McMahon, Jr., an orthopedic surgeon. Ms. Darland testified the plaintiff never told her that she had injured herself while working for Clinch River. She denied making an appointment for the plaintiff with a doctor. Ms. Darland testified the plaintiff would tell her that her knee hurt and that she believed it was caused by an accident at her previous employment. Ms. Darland said the plaintiff never told her she was hurt while working for Clinch River. Joyce Chattin, the director of nursing at Clinch River, testified the plaintiff came to her on February 12, 1999, and brought a note from a doctor that limited the plaintiff to lifting no more than thirty pounds. The plaintiff told Ms. Chattin not to worry that the cause of her problem happened at a place of previous employment. Pamela Sue Obenshain, executive director at Clinch River, testified she talked to the plaintiff after February 12, 1999, and that the plaintiff could not point to any specific incident while working for Clinch River which caused an injury to her right knee. The plaintiff told Ms. Obenshain she thought the work for Clinch River aggravated the previous injury. Medical Evidence Dr. Cletus J. McMahon, Jr. an orthopedic surgeon first saw the plaintiff on February 24, 1999, when she was referred to him by Dr. Malagon. After testing of the plaintiff's right knee, Dr. -2-
Knox
Workers Compensation Panel
Ed Davis vs. City of Milan W2001-00801-COA-R3-CV
Authoring Judge: Judge W. Frank Crawford
Trial Court Judge: Clayburn L. Peeples
Farmer sued city for damages resulting from a fire that destroyed his barn alleging that the city's utility division was negligent in installing a pole and wire on his property and was also negligent in failing to prevent an electrical surge that caused the failure in the wiring. The trial court granted summary judgment to city, and plaintiff appeals. We reverse.
The petitioner was convicted of possession of cocaine with intent to sell and sentenced to twelve years in confinement. His conviction was affirmed by this court on direct appeal. He then filed a petition for post-conviction relief alleging, inter alia, that trial counsel was ineffective. Following a hearing, the post-conviction court denied relief, and the petitioner appealed. After a thorough review, we affirm the judgment of the post-conviction court.
The Appellant, Barry N. Waddell, proceeding pro se, appeals the Davidson County Criminal Court's summary dismissal of his petition for post-conviction relief. The post-conviction court found Waddell's petition was time-barred. On appeal, Waddell argues that: (1) his petition was timely filed, and (2) alternatively, if the petition was untimely filed, the statute of limitations was tolled under the holding of Dexter Williams v. State, 44 S.W.3d 464 (Tenn. 2001). After review, we affirm the judgment of the post-conviction court dismissing the petition.
A Williamson County grand jury indicted the defendant on one count of possession of not less than ten pounds, one gram of marijuana nor more than seventy pounds of marijuana with intent to sell or deliver. Through counsel the defendant filed a motion to suppress any evidence or statements resulting from the allegedly unconstitutional search of the defendant's vehicle. When the motion to suppress was denied, the defendant waived his right to a trial by jury and pled guilty as charged. For this offense the trial court sentenced the defendant as a Range I, standard offender to two years, which would be suspended after the service of one hundred days, day for day; placed him on supervised probation for a period of four years; and fined him five thousand dollars. According to the Negotiated Plea Agreement form, there was also an agreement with the State that the defendant would later submit a certified question of law to this Court. Through this appeal the defendant asks us to consider two search related issues. However, the State asserts that the defendant did not properly reserve the certified questions, and, thus, this Court lacks jurisdiction to consider them. Finding the State's position has merit, we, therefore, dismiss this appeal.
