James H. Crawford v. State of Tennessee
E2003-00097-CCA-R3-PC
Authoring Judge: Judge Jerry L. Smith
Trial Court Judge: Judge R. Jerry Beck

On March 23, 1998, The petitioner pled guilty to six (6) counts of attempt to commit incest and six (6) counts of attempt to commit rape. He was sentenced to six (6) years for each count, all to be served concurrently to each other. On March 20, 2002, he filed a Petition for Post-Conviction Relief. He based his petition on two grounds of relief, attorney misrepresentation and DNA analysis under Tennessee Code Annotated section 40-30-403. The trial court dismissed the petition as time-barred on the attorney misrepresentation issue and as not meeting the statutory requirements on the DNA issue. The petitioner appeals the trial court's decision. We affirm the trial court.

Floyd Bouldin v. Warren County Sheriff's Department
M2003-00602-WC-R3-CV
Authoring Judge: John A. Turnbull, Sp. J.
Trial Court Judge: The Hon. John Rollins, 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). Defendant challenges the admission of expert medical opinion as based on erroneous records and insists the amount of the award is excessive because it exceeds the two and one-half times cap. We affirm the judgment of the trial court. Tenn. Code Ann. 5-6-225(e) (1999); Appeal as of Right: Judgment of the Chancery Court is affirmed JOHN A. TURNBULL, Sp. J. in which FRANK DROWOTA C.J., and HOWELL PEOPLES, SP. J., joined. Larry B. Stanley, McMinnville, Tennessee, for Appellants, Warren County Sheriff's Department and Warren County, Tennessee. Barry Medley, McMinnville, Tennessee, for Appellee, Floyd Bouldin. OPINION I. Facts and Procedural Background The seventy-one year old plaintiff, Floyd Bouldin, worked for the Warren County Sheriff's Department as a transportation officer and court bailiff. On April 1, 21, Bouldin was transporting a prisoner when the prisoner became unruly, scuffled with Bouldin and wrenched his left arm and shoulder. Bouldin, upon his report of injury, was referred by his employer to Dr. Donald M. Arms, a local orthopedic surgeon, who had previously seen Bouldin for other ailments. Dr. Arms diagnosed a torn rotator cuff and initially treated him conservatively. When the injury did not respond, surgery was performed on July 16, 21. Even though the MRI had demonstrated a probable partial rotator cuff tear, during surgery Dr. Arms found no rotator cuff tear. Instead, he found severe degenerative arthritis in the shoulder joint. Dr. Arms performed an open distal clavicle excision (removing the arthritic end of the collar bone) and cleaned out the arthritis and bursitis in the shoulder joint. Since Bouldin had not suffered shoulder symptoms before the trauma of April 1, 21, Dr. Arms testified: "I'm at least 51 percent sure that the trauma ... led to his symptoms," ... "the pain and symptoms that he had and the need for surgery is the result of his work injury." Mr. Bouldin returned to work at a lighter duty job and worked for approximately eight months guarding prisoners in the exercise yard and on clean up duties, and transporting prisoners to court sessions in which he acted as bailiff. Mr. Bouldin resigned his employment on July 31, 22, two years before his county retirement would have vested. Mr. Bouldin stated, and his wife confirmed, that he quit because his shoulder and arm were so weak he could not safely perform his duties; he feared his condition could place himself and others in danger. Dr. Arms assigned a seven percent permanent partial impairment to the body when he last saw Bouldin in December 21. Not satisfied with that rating, Bouldin's attorney referred him to Dr. Robert Landsberg for an independent medical exam which was performed on August 21, 22. Dr. Landsberg reviewed Dr. Arms records in which Dr. Arms had indicated a partial rotator cuff tear, and assumed that Dr. Arms had, in fact, found the rotator cuff tear during his surgery. Dr. Landsberg did not, and could not have known, that Dr. Arms would later testify that he found no rotator cuff tear during surgery. Dr. Landsberg found decreased strength and loss of motion and was of the opinion that the AMA Guides to the Evaluation of Permanent Impairment 5th edition required impairments of six percent to the extremity for decreased range of motion and three percent to the extremity for loss of strength in addition to the ten percent extremity impairment for the distal clavicle resection. Dr. Landsberg combined these extremity impairments, and related them to the body as a whole for an eleven percent permanent partial impairment rating. In addition, Dr. Landsberg assigned significant left arm restrictions: no lifting over five pounds above the shoulder, avoid repetitive reaching to -1-

Michael Wayne Phillips v. Liberty Mutual Insurance
M2003-00855-WC-R3-CV
Authoring Judge: John A. Turnbull, Sp. J.
Trial Court Judge: The Hon. John D. Wootten, 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. The trial court found plaintiff suffered a compensable injury to his back, sustained a forty-eight percent permanent partial disability to the body as a whole, suffered a compensable carpal tunnel injury to his right arm, and sustained a twenty-five percent permanent partial disability to the right arm. The employer challenges the compensability of the arm injury and the amount of each award. We affirm the judgment of the trial court. Tenn. Code Ann. 5-6-225(e) (1999); Appeal as of Right: Judgment of the Circuit Court is affirmed JOHN A. TURNBULL, Sp. J. in which FRANK DROWOTA C.J., and HOWELL PEOPLES, SP. J., joined. David T. Hooper, Brentwood, Tennessee, for Liberty Mutual Insurance Company and United Parcel Service, Inc., Appellants. William Joseph Butler and E. Guy Holliman, McMinnville, Tennessee, for Michael Wayne Phillips, Appellee. OPINION I. Facts and Procedural Background Michael Wayne Phillips, age 43, had been working for United Parcel Service (U.P.S.) for thirteen years when he injured his back and right arm on December 3, 21. As a part of his job driving tractor trailers, Phillips was required to manipulate a heavy dolly into position between two trailers to connect them. While moving the dolly, Phillips felt a stabbing pain in his back and subsequently felt symptoms in his right arm, hand, leg and foot. Phillips had suffered a previous injury to his back while working for U.P.S. in 1994, but had recovered without disability. Mr. Phillips gave immediate notice of his injury and was referred to a local physician. He was then referred to Dr. Michael Moore, a specialist in physiatry and electro diagnostic medicine, in Lebanon, who first saw Phillips on December 11, 21. Since Mr. Phillips was complaining of numbness and tingling in his right hand and arm, Dr. Moore performed electro diagnostic studies which showed entrapment of the right median nerve at the wrist corresponding with carpal tunnel syndrome. Dr. Moore continued to treat plaintiff, who was unable to return to work, until Dr. Moore placed him at maximum medical improvement on April 23, 23. Dr. Moore assigned a five percent permanent partial impairment to the body for the low back injury, and placed restrictions of occasional lifting up to fifty pounds, frequent lifting up to twenty to twenty-five pounds from knee to waist level, and no repetitive lifting from the floor. U.P.S. could not return Phillips to work as his job description required significant heavy lifting. With reference to the carpal tunnel injury, Dr. Moore testified that it was "quite possible" that Mr. Phillips' arm condition was a result of his repetitive duties at U.P.S. Dr. Moore specifically declined to express an opinion as to the extent of any permanent impairment to the arm: "I would not be in a position to make that assessment at this point in time given that I haven't seen the patient in some ten months, and I'm not aware as to whether there's been any progression of his symptoms." Mr. Phillips was also seen by Dr. Walter Wheelhouse on two occasions in October, 22, for an independent medical exam. Dr. Wheelhouse agreed with Dr. Moore that Mr. Phillips had mechanical low back pain with bulging discs, but fixed his back impairment at eight percent, rather than the five percent given by Dr. Moore, because of chronic low back pain. In addition, Dr. Wheelhouse found the carpal tunnel injury to be caused by work, and related an impairment of five percent to the right arm. Dr. Wheelhouse assigned work restrictions to Mr. Phillips of no bending, stooping, or lifting over twenty pounds occasionally, and no repetitive motion of his back, or long distance truck for the low back injury. For the carpal tunnel, Dr. Wheelhouse assigned work restrictions of no repetitive motions of his right arm, and no trauma to the right hand. Dr. Wheelhouse further prescribed that plaintiff should wear a splint on the right hand/wrist. -1-

State of Tennessee v. Michael David Totty
M2002-02601-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Robert E. Burch

Defendant, Michael David Totty, was indicted on one count of burglary of a building other than a habitation, a Class D felony, and one count of theft of property over $1,000 but less than $10,000, a Class D felony. The jury found Defendant guilty of the lesser-included offense of facilitation of a burglary other than a habitation on count one and guilty on count two, theft of property. The trial court sentenced Defendant as a Range III persistent offender to ten years on the theft conviction and six years on Defendant’s conviction of facilitation of a burglary. The trial court ordered Defendant’s sentences to run concurrently for an effective sentence of ten years. Defendant does not appeal his sentence. On appeal, Defendant argues that the trial court’s denial of his motion for a continuance prevented Defendant from securing a material witness for trial and denied his counsel an adequate opportunity to evaluate Defendant’s competency to stand trial. Defendant also argues that the evidence was insufficient to support his convictions. After a thorough review of the record, we affirm the judgments of the trial court.

Wellesley Builders, L.L.C. v. Village of Cherry Glen Association, Inc.
M2002-03102-COA-R3-CV
Authoring Judge: Judge Patricia J. Cottrell
Trial Court Judge: Special ChancellerClaudia C. Bonnyman

The Homeowners' Association of a residential subdivision organized as a planned unit development assessed maintenance fees against the owner of twenty-two unimproved lots in the subdivision. The owner of those lots filed a suit to obtain a declaration that it was not liable for those fees, alleging that the developer had waived all assessments on vacant lots. The trial court found that the Association was entitled to rescind the waiver, granted summary judgment to the Association, and ordered the lot owners to pay the fees, as well as significant late charges and attorney fees, for a total of over $45,000. We reverse the judgment because there is no evidence in the record that the Board of Directors of the Homeowners' Association ever officially rescinded the waiver, and there is thus a material question of fact as to whether its assessments were valid.

State of Tennessee v. Leroy Nevils
M2003-00520-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Donald P. Harris

The defendant was convicted of DUI, second offense. He contends that 1) the evidence was insufficient, 2) the trial court erred in instructing the jury on reasonable doubt, 3) the trial court erred in instructing the jury as to the inference from refusal to submit to a chemical test, and 4) the trial court erred in failing to grant the motion to strike the enhancement count. The judgment of the trial court is affirmed.

State of Tennessee v. Leroy Nevils - Concurring
M2003-00520-CCA-R3-CD
Authoring Judge: Judge Joseph M. Tipton
Trial Court Judge: Judge Donald P. Harris

I concur in the results reached in the majority opinion. However, I question whether a “reasonable certainty” equates to a “moral certainty” relative to the definition of reasonable doubt in Tennessee. Also, I believe that trial courts in this state should not be using varying definitions of reasonable doubt.

State of Tennessee v. David Kyle Gilley
M2003-00499-CCA-R9-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Don Ash

Pursuant to Rule 9, Tennessee Rules of Appellate Procedure, both the defendant and the State were granted appeals from an interlocutory order of the trial court granting in part, and denying in part, Defendant's motion to exclude Rule 404(b), Tennessee Rules of Evidence, testimony. After a careful review of the evidence, we affirm in part and reverse in part the trial court's order.

State of Tennessee v. Dennis Ray Jones and Pamela Kay Barker
W2002-00402-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Julian P. Guinn

Appellant Dennis Ray Jones was convicted in the Henry County Circuit Court of manufacturing methamphetamine and was sentenced to three years incarceration in the Tennessee Department of Correction. Appellant Pamela Kay Barker was convicted of criminal responsibility for facilitating the manufacturing of methamphetamine and was sentenced to two years incarceration in the Tennessee Department of Correction. On appeal, the appellants raise numerous issues, including the trial court’s ruling on a motion to suppress, the sufficiency of the evidence, and sentencing. Upon review of the record and the parties’ briefs, we affirm the judgments of the trial court but remand for a correction of Appellant Barker’s judgment of conviction.

State of Tennessee v. Dennis Ray Jones and Pamela Kay Barker - Concurring/Dissenting
W2002-00402-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Julian P. Guinn

I concur in affirming defendant Jones’s conviction of manufacturing methamphetamine but respectfully dissent from affirming Barker’s conviction of facilitation of the same offense.

Anthony Murff v. State of Tennessee
W2003-00467-CCA-R3-PC
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Joseph H. Walker, III

This is an appeal by the petitioner from the denial of his post-conviction relief petition. The petitioner was originally convicted of especially aggravated robbery and sentenced to 60 years at 100% service. After careful review, we affirm the denial of post-conviction relief.

In Re: Estate of Erin Murray Jones
M2002-03073-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Judge Frank Clement, Jr.

This appeal is from a will contest. The trial court entered judgment according to the terms of a settlement agreement between the parties. Appellants contend they withdrew their agreement to the settlement before approval of the agreement by the trial court. They accordingly submit the agreement is not enforceable. We affirm judgment of the trial court enforcing the terms of the settlement agreement.

State of Tennessee v. Danny Wayne Arnold
M2003-01127-CCA-R3-CD
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Judge Lee Russell

The defendant was convicted of robbery under a theory of criminal responsibility for the conduct of another. The defendant contends the evidence was insufficient to sustain his conviction. We conclude a reasonable jury could have inferred the defendant's intent to assist in the robbery based upon his contemporaneous assault on the victim. We affirm the judgment of the trial court.

State of Tennessee v. Cecil Moss
M2003-00477-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Robert E. Burch

Defendant, Cecil Moss, appeals from the trial court's order revoking his probation and reinstating his original sentence to be served in the Tennessee Department of Correction. Defendant argues that the trial court erred by failing to consider any alternative sentencing options other than incarceration. We affirm the judgment of the trial court.

Crew One Productions, Inc., v. State of Tennessee
M2003-00585-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Commissioner W.R. Baker

This is an employment tax case. The State of Tennessee appeals the determination of the Tennessee Claims Commission that Crew One Productions is not liable for Tennessee employment tax by virtue of a federal safe harbor provision known as section 530. We reverse, holding Tennessee is not bound by the federal safe harbor provision.

State of Tennessee v. Paul Anthony Buckner
M2003-01743-CCA-R3-CD
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Judge Seth W. Norman

The defendant pled guilty to two counts of attempted second degree murder. Following a sentencing hearing, the trial court imposed two consecutive ten-year sentences. The defendant contends on appeal the trial court erred in imposing consecutive sentences. We affirm the judgments of the trial court.

Robert E. Allen v. State of Tennessee
E2003-01070-CCA-R3-PC
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Richard R. Baumgartner

The Petitioner, Robert E. Allen, pled guilty to aggravated assault, three counts of domestic assault, vandalism, evading arrest, public intoxication and reckless burning. The trial court sentenced him to five years in prison for the aggravated assault and eleven months and twenty-nine days on each of the other charges, with the sentences to run concurrently. The Petitioner did not perfect an appeal of his sentence, but petitioned for post-conviction relief on the grounds that he was denied effective assistance of counsel. Following a hearing on the post-conviction petition, the post-conviction court dismissed the petition. On appeal, the Petitioner contends that he was denied effective assistance of counsel for the following reasons: (1) trial counsel failed to properly advise him as to the potential sentences for all the charges covered in the plea agreement; and (2) trial counsel failed to advise him of his right to appeal the sentence imposed by the trial court. Finding no error, we affirm the post-conviction court's dismissal of the petition.

Mark Edward Igou v. Dinah Carol Igou
E2003-00253-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Chancellor W. Frank Brown, III

Mark Edward Igou ("Husband") sued Dinah Carol Igou ("Wife) for a divorce. After trial, the Trial Court awarded Wife alimony only to the extent of requiring Husband to "pay all cost of tuition, books, fees, and other charges relating to [Wife's] obtaining a master's degree whether it's in education or any other related field which will increase her compensation" with the restrictions that Wife must complete the course of study within five years from the entry of the Trial Court's order and that Wife must achieve passing grades. Wife appeals the Trial Court's judgment as to alimony and attorney fees. We affirm.

Janice Forsyth, et al., v. Mary N. Cross
E2003-01338-COA-R3-CV
Authoring Judge: Sr. Judge William H. Inman
Trial Court Judge: Chancellor Frank V. Williams, III

This is a boundary-line case. The Defendant's survey evidence was excluded, and reputation evidence offered by the Plaintiff as to the common boundary line was admitted. Defendant appeals. We affirm.

Samuel Timothy Collins, v. Knox County, Tennessee, et al., - Concurring
E2003-01421-COA-R3-CV
Authoring Judge: Judge Charles D. Susano
Trial Court Judge: Judge Wheeler A. Rosenbalm

I concur in the result reached by the majority. I do so because I believe the record before us
reflects undisputed material facts that negate an essential element of the plaintiff’s cause of action, i.e., the element of “proximate causation” of the appellant’s damages. I do agree with the appellant that there remains a genuine issue of material fact for the trier of fact as to the element of “cause in fact.” I believe a jury could reasonably find that there is a “cause and effect relationship between the defendant’s tortious conduct and the plaintiff’s injury or loss.” White v. Lawrence, 975 S.W. 2d 525, 529 (Tenn. 1998). As the Supreme Court has pointed out, “cause in fact” addresses the “‘but for’ consequences of an act.” Id. However, in my judgment, the conduct of the Sheriff’s Office, once the deputies arrived at the bank and thereafter took the appellant into custody, conclusively militates against a finding of proximate causation tying the bank’s conduct to the appellant’s damages.

Samuel Timothy Collins v. Knox County, Tennessee, et al.
E2003-01421-COA-R3-CV
Authoring Judge: Presiding Judge Houston M. Goddard
Trial Court Judge: Judge Wheeler A. Rosenbalm

This appeal arises out of a complaint filed by the Appellant, Samuel Timothy Collins, against the
Appellee, NBC Bank, for damages he allegedly incurred as a consequence of his erroneous arrest and incarceration by the Knox County Sheriff’s Department. We affirm the judgment of the Trial Court.

John F. McCarthy v. UT- Battle, L.L.C
E2003-02052-COA-R3-CV
Authoring Judge: Sr. Judge William H. Inman
Trial Court Judge: Judge Russell E. Simmons, Jr.

The Plaintiff was an at-will employee of the Defendant when he was terminated for an asserted cause. In this action he alleges that he was wrongfully terminated because the Oak Ridge National Laboratory Handbook afforded him a contractual right of peer review. The motion of the Defendants for summary judgment was granted upon a finding that the Handbook was not an employment contract. We affirm.

Linda G. Johnson v. Mark Reineke, et al.
E2003-01972-COA-R3-CV
Authoring Judge: Sr. Judge William H. Inman
Trial Court Judge: Chancellor Jerri S. Bryant

The Petitioner was discharged from her executive position as Director of the Lenoir City Housing Authority for misconduct connected with her employment. The Authority was awarded McKinney Act funds, an audit of which revealed that $156,000.00 of these funds were inappropriately expended, which led to the discharge of the Petitioner.

George Pickle v. State of Tennessee
W2002-02622-CCA-R3-HC
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge J. C. McLin

This matter is before the Court upon the State’s motion to affirm the judgment of the trial court by opinion pursuant to Rule 20, Rules of the Court of Criminal Appeals. The Petitioner is appealing the trial court's denial of habeas corpus relief. The Petitioner fails to assert a ground of relief entitling him to habeas corpus relief. Accordingly, the State's motion is granted and the judgment of the trial court is affirmed.

Linda Ward, Individually and as Natural Child and Surviving Next of Kin of Nellie M. Curlin, Deceased v. Ami Sub (SFH), Inc., et al.
W2003-00965-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Judge Rita L. Stotts

This appeal arises from a medical malpractice action. The trial court awarded Defendant Luis A.
Fiallo, M.D., summary judgment based on the statute of limitations and statute of repose. We
affirm.