Convicted in the Montgomery County Circuit Court of the second-degree murder of his wife, Imja Xhaferi, the defendant, Drini D. Xhaferi, appeals and claims the trial court erred in not instructing the jury as to voluntary manslaughter, in not suppressing evidence seized by military authorities, and in admitting evidence of the defendant's prior assaults of the victim. Finding no reversible error, we affirm.
The Defendant, Michael W. Cooper, pled guilty to one count of aggravated burglary and one count of aggravated assault. His plea agreement provided that he would be sentenced as a Range II offender; however, the length and manner of service of his sentences were left for the trial court's determination. After a hearing, the trial court sentenced the Defendant to nine years incarceration for each offense, to be served consecutively. The Defendant now appeals, contending that the trial court misapplied an enhancement factor; that the trial court erred in sentencing him to equivalent terms for each offense in spite of finding fewer enhancement factors applicable to the aggravated assault; and that the trial court erred in ordering his sentences to run consecutively. We affirm the judgment of the trial court.
The Defendant, Alfio Orlando Lewis, was convicted by a Davidson County jury of two counts of attempted second degree murder and two counts of aggravated assault. After a sentencing hearing, the trial court merged the two aggravated assault convictions into the two attempted second degree murder convictions. The Defendant was sentenced to 12 years to be served consecutively in the Department of Correction on each of the attempted second degree murder convictions for an effective sentence of 24 years. On appeal, the Defendant contends that (1) the evidence is insufficient to support the convictions, (2) the trial court erroneously prevented him from testifying that a fellow inmate confessed to the crime, and (3) the trial court improperly sentenced the Defendant. We affirm the judgment of the trial court.
Davidson
Court of Criminal Appeals
Tamatha Marie Howe v. Jones Plastic and Engineering W2001-00555-WC-R3-CV
Authoring Judge: L. Terry Lafferty, Senior Judge
Trial Court Judge: Julian P. Guinn, 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 hearing and reporting to the Supreme Court of findings of fact and conclusions of law. In this appeal, Defendant asserts: (1) the trial court erred in not limiting Plaintiff's permanent partial disability award to two and one-half (2-1/2) times her medical impairment rating of ten percent (1%) as provided by Tenn. Code Ann. _ 5-6-241(a)(1); (2) the trial court's award of seventy-five percent (75%) disability, a multiple of seven and one half (7-1/2) times her impairment rating, should be reduced when there are no specific findings supported by clear and convincing evidence of at least three of four factors contained in Tenn. Code Ann. _ 5-6-242; and (3) the trial court erred in granting Plaintiff temporary total disability benefits from May 2, 1999 until November 3, 1999. After a review of the entire record, applicable law and as discussed below, the Panel affirms in part, reverses in part, and remands to the trial court for specific findings with respect to permanent partial disability benefits. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Circuit Court is Affirmed in Part, Reversed in Part and Remanded. L. TERRY LAFFERTY, SR. J., in which JOE C. LOSER, SP. J., and JANICE M. HOLDER, J., joined. John D. Burleson and V. Latosha Mason, Jackson, Tennessee, for the appellant, Jones Plastic and Engineering Company. Charles L. Hicks, Camden, Tennessee, for the appellee, Tamatha Marie Howe. MEMORANDUM OPINION Plaintiff, Tamatha Marie Howe, was thirty-one years old at the time of her injury and had worked for the employer, Camden Plastics, for three months. Plaintiff completed the 1th grade and has been attempting to obtain her GED. Her prior work history consisted of dishwashing, cooking and building furniture. Plaintiff worked for Defendant as a machine operator. On April 19, 1999, Plaintiff slipped on some grease at work and injured her back when it struck a metal bar. On April 2, 1999, x-rays at the Camden General Hospital emergency room reflected no fracture, subluxation or bony destruction. No significant degenerative changes were noted. Plaintiff was given pain medication and referred to her primary doctor. On April 21, 1999, Plaintiff was seen by Dr. Jesse Sewell with complaints of pain in her lower back radiating down her right thigh and leg. Plaintiff was seen by Dr. Sewell several times between April 21, 1999 and May 17, 1999. Dr. Sewell performed an MRI and treated Plaintiff conservatively. Plaintiff was treated by Dr. Sewell until June 2, when she was seen by other doctors. According to company policy, Plaintiff provided Defendant with Dr. Sewell's certificates for return to work/appointments. Plaintiff acknowledged that she did not return to work after receiving a letter from Defendant one day stating, "no show, no call, she was fired." At time of trial, Plaintiff stated that she has not worked since her accident, her back hurts, she cannot lift, bend or hardly walk and is currently on pain medication prescribed by her doctor. Plaintiff's husband corroborated his wife's testimony concerning her difficulties in performing her housework and physical complaints. Plaintiff has attended a school offering vocational assistance, but she complained that the jobs all required lifting. Plaintiff acknowledged that she did not see a doctor after May 2, 1999, because she had been fired and assumed her medical treatment would not be covered. Stacy King, a receiving clerk and Plaintiff's supervisor, testified on behalf of Defendant. She recalled Plaintiff's injury in April 1999, as Plaintiff reported the injury to her. Ms. King was also aware that Plaintiff was terminated. Ms. King testified that she saw Plaintiff one time between April 19, 1999, and her termination date. She stated she was driving along a highway in Bruceton, Tennessee, passing a factory outlet store, when she observed Plaintiff either climbing in or out of a car door window. Plaintiff denied that she could climb in and out of a car window. Sylvia Page, Human Resource Manager, testified that she handles workers' compensation claims for Defendant. Ms. Page identified off-work slips from a doctor's office indicating appointments, return to work, or if the employee is on restricted duty. After Plaintiff's first visit, she was to return to work on April 27. Ms. Page stated that she advised Plaintiff, "When you go for your doctor's appointment, whatever paper work is given to you at the doctor's office, please come back by our office and leave it with us so that we know whether you're on restricted duty or off work." Ms. Page testified that she made the decision to terminate Plaintiff. On the last page of Exhibit 1, Ms. Page identified a doctor's slip which indicated that Plaintiff could return to work on May 2, 1999. Also, above these words were the words "next appointment." To Ms. Page, this indicated that Plaintiff had both an appointment and a return to work on the same day. Plaintiff was scheduled to -2-
Benton
Workers Compensation Panel
Jimmy Wagner v. Tower Automotive 001-00728-WC-R3-CV
Authoring Judge: W. Michael William Michael Maloan, Special Judge
Trial Court Judge: George R. Ellis, Chancellor
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. _5-6-285 (e)(3) for hearing and reporting to the Supreme Court of findings and fact and conclusions of law. The defendant, Tower Automotive appeals the judgment of the trial court which awarded fifteen percent (15%) permanent partial disability to each arm as being excessive. For the reasons stated in this opinion, We affirm the judgment of the trial court. Tenn. Code Ann. _ 5-6-225(e) (2) Appeal as of Right; Judgment of the Chancery Court Affirmed W. MICHAEL MALOAN, SP. J., in which JANICE M. HOLDER, J. and JOE C. LOSER, JR., SP. J., joined. Deana C. Seymour, Jackson, Tennessee, for appellant, Tower Automotive Products Company, Inc. Gayden Drew IV, Jackson, Tennessee, for appellee, Jimmy Wagner MEMORANDUM OPINION The plaintiff, Jimmy Wagner, was forty-one (41) years old at the time of trial. He has a high school education. Prior to working for the defendant, Tower Automotive Products (Tower), in 1992 or 1993, he worked restoring furniture, drove a truck, worked construction, and obtained a welding certificate. He testified he had no prior problems with his arms, elbows, or shoulders before working for Tower. While at Tower, he developed bilateral carpal tunnel syndrome in 1994 and had surgery on both wrists. He did not file a workers' compensation claim. As a result of the surgery, he doesn't have the grip he used to have. At Tower, plaintiff placed twenty (2) to twenty-five (25) pound parts into a press at a rate of two hundred (2) per hour. Plaintiff reported right shoulder and arm pain to his employer on June 9, 1999. Tower referred him to Dr. Claiborne Christian, an orthopedic surgeon, who diagnosed tendinitis of the shoulder. On June 21, 1999, plaintiff complained to Dr. Christian of pain in both elbows which he diagnosed as lateral epicondlylitis. Dr. Christian continued conservative treatment until October 12, 1999, when he performed surgery on the right elbow and on January 19, 2, for the left elbow. Dr. Christian assigned a three percent (3%) permanent partial disability to each upper extremity based on the AMA Guidelines and no impairment for his shoulders. He did not assign any permanent restrictions. Dr. Larry Johnson, an orthopedic surgeon, saw plaintiff on June 3, 2, for shoulder problems. Dr. Johnson was of the opinion plaintiff's work aggravated a congenital defect known as os acromiale, where the end of the acromion is not completely fused. On the last visit of November 6, 2, Dr. Johnson felt his shoulder problems had resolved and did not assign any impairment or work restrictions. Dr. Joseph Boals examined plaintiff on April 12, 2, with a history of injuries to both shoulders and elbows. On examination, Dr. Boals found a full range of motion with impingement syndrome in both shoulders and a full range of motion in both elbows. His grip strengths were average. Dr. Boals assigned a fifteen percent (15%) permanent impairment to each arm for the residual weakness from the elbow surgeries and five percent (5%) permanent impairment to each shoulder for tendinitis for a combined value of nineteen percent (19%) to each upper extremity. Dr. Boals did not rely on the AMA Guidelines. Dr. Boals stated plaintiff should not engage in his present work as a press operator and should not work overhead or away from his body and to avoid repetitive work and gripping. After being released by Dr. Christian, plaintiff returned to Tower as a press operator on a different machine which is easier on his arms because he does not have to bend or straighten them as much as before. Plaintiff testified his elbows bother him every time he has to grip or twist and pain in his shoulders keep him up at night. The trial court awarded fifteen percent (15%) permanent partial disability to each arm. The scope of review of issues of fact is de novo upon the record of the trial court, accompanied by a presumption of correctness of the findings, unless the preponderance of evidence is otherwise. Tenn. Code Ann. _ 5-6-225(e)(2). Lollar v Wal-Mart Stores, Inc., 767 S.W.2d 143 (Tenn. 1989). When a trial court has seen and heard witnesses, especially where issues of credibility and weight of oral testimony are involved, considerable deference must be accorded the trial court's factual findings. Humphrey v David Witherspoon, Inc., 734 S.W.2d 315 (Tenn. 1987). However, where the issues involve expert medical testimony which is contained in the record by deposition, -2-
Frederick G. Anderson appeals his convictions of two counts of attempted aggravated rape, aggravated kidnapping and aggravated burglary. He received his convictions at the conclusion of a jury trial in the Davidson County Criminal Court. Presently serving an effective nine-year sentence as a violent offender, he challenges the sufficiency of the convicting evidence in this appeal. Because we are unpersuaded by the defendant's claims, we affirm.
Davidson
Court of Criminal Appeals
James Roger Ford v. State of Tennessee M2001-01654-CCA-R3-PC
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Lillie Ann Sells
Petitioner, James Roger Ford, pled guilty on October 28, 1998, to the following offenses: casual exchange of marijuana, a Class A misdemeanor; sale of diazepam, a Class D felony; sale of more than 1/2 ounce of marijuana, a Class E felony; and two counts of public intoxication, a Class C misdemeanor. In addition, Petitioner entered a "best interest" plea of guilty to the charge of introducing contraband in jail, a Class C felony. The trial court sentenced Petitioner as a Range I offender to eleven months and twenty-nine days for the offense of casual exchange of marijuana, thirty days each for the two counts of public intoxication, two years for the sale of more than 1/2 ounce of marijuana, and four years each for the sale of diazepam and introducing contraband in jail, with all sentences to be served concurrently on a Community Corrections program. On November 24, 1998, a violation of Community Corrections warrant was filed. Petitioner pled guilty to violating the terms of his community-based sentence and agreed to serve the remainder of his four-year sentence in incarceration. On October 27, 1999, he filed a pro se petition for post-conviction relief, which the trial court denied after a hearing on the merits. Petitioner appeals the court's denial of post-conviction relief, alleging that he received ineffective assistance of counsel prior to and during the plea proceedings and that his guilty plea was not knowingly or voluntarily entered. Following a thorough review of the record, we affirm the judgment of the post-conviction court.
After a lengthy trial, a Rutherford County jury found the defendant, Kenneth Paul Dykas, guilty of first-degree murder, especially aggravated robbery, and conspiracy to commit especially aggravated robbery. Following a separate penalty trial on the first-degree murder conviction, the same jury sentenced the defendant to life without the possibility of parole, and the trial court subsequently sentenced the defendant as a Range I offender to eleven years on the conspiracy conviction and as a violent offender to 24 years on the especially aggravated robbery conviction. The trial-court- imposed sentences were ordered to run concurrently with one another but consecutively to the first- degree murder sentence. In this appeal, the defendant complains that the evidence is insufficient, that numerous errors in the jury selection process taint his convictions, that DNA test results were improperly admitted, that the state suppressed exculpatory evidence about its jailhouse informant who testified at trial, and that consecutive sentencing was not justified. After a comprehensive review of the record, the briefs of the parties, and the applicable law, we affirm the judgment of the trial court.
Rutherford
Court of Criminal Appeals
State of Tennessee v. Vinson Taylor W2001-01551-CCA-R3-PC
Authoring Judge: Presiding Judge Gary R Wade
Trial Court Judge: Judge R. Lee Moore Jr.
On June 23, 1999, the defendant, Vinson Taylor, pled guilty to the sale of cocaine in excess of .5 grams, a Class B felony. The trial court imposed a sentence of eight years. Almost ten months later, the defendant filed a petition for post-conviction relief. On appeal from an order denying post-conviction relief, this court granted a delayed appeal based upon the failure of trial counsel to file a timely appeal. Vinson Taylor v. State, No. W2000-01991-CCA-R3-PC (Tenn. Crim. App., at Jackson, May 3, 2001). In this delayed appeal, the defendant contends that the trial court should have granted alternative sentencing. The judgment is affirmed.
Dyer
Court of Criminal Appeals
State of Tennessee v. Vinson Taylor W2001-01551-CCA-R3-PC
Authoring Judge: Presiding Judge Gary R Wade
Trial Court Judge: Judge R. Lee Moore Jr.
On June 23, 1999, the defendant, Vinson Taylor, pled guilty to the sale of cocaine in excess of .5 grams, a Class B felony. The trial court imposed a sentence of eight years. Almost ten months later, the defendant filed a petition for post-conviction relief. On appeal from an order denying post-conviction relief, this court granted a delayed appeal based upon the failure of trial counsel to file a timely appeal. Vinson Taylor v. State, No. W2000-01991-CCA-R3-PC (Tenn. Crim. App., at Jackson, May 3, 2001). In this delayed appeal, the defendant contends that the trial court should have granted alternative sentencing. The judgment is affirmed.
The petitioner appeals from the Hamilton County Criminal Court's denying him post-conviction relief from his 1998 conviction for the attempt to commit aggravated assault and ensuing twelve-year sentence as a career offender. He contends that he received the ineffective assistance of counsel. We affirm the conviction.
Hamilton
Court of Criminal Appeals
Melinda F. Peeler v. Kimberly-Clark Corporation, E2001-00541-WC-R3-CV
Authoring Judge: Thayer, Sp. J.
Trial Court Judge: Frank V. Williams, III, Chancellor
The trial court dismissed the complaint finding proper notice of injury had not been given and that a reasonable excuse did not exist for the failure to give notice. The employee appealed insisting she was not aware that she had a work-related injury. Judgment of the trial court is affirmed.
Knox
Workers Compensation Panel
Arminta C Arter W Oods v. City of Mcm Innville M2001-00680-WC-R3-CV
Authoring Judge: Howell N. Peoples, Special Judge
Trial Court Judge: Richard McGregor, Special Judge
The employer appeals an award of workers' compensation benefits to an employee who, while attending a work-related seminar distant from her place of employment, was injured on a personal mission. We vacate the judgment as void and remand for a trial by a duly elected judge.
Warren
Workers Compensation Panel
Judy Lynn Popa v. Mckinnon Lumber Co., Inc. M2001-01743-WC-R3-CV
Authoring Judge: James L. Weatherford, Sr. J.
Trial Court Judge: Allen W. Wallace, Judge
The appellant (mother of the three minor children of the deceased employee) contends that the trial court erred in not commuting the surviving childrens' benefits to a lump sum. The trial court ordered: 1) that the accrued death benefits be paid into the Circuit Court Clerk's office and held in trust for the three minor children until their eighteenth birthdays; and 2) the remaining benefits be paid to the clerk's office in bi-weekly installments to be invested and held in trust for the children's benefit.
Houston
Workers Compensation Panel
Jody Collins v. Lear Seating Corporation, E2001-00223-WC-R3-CV
Authoring Judge: John K. Byers, Sr. J.
Trial Court Judge: Ben W. Hooper, Ii, Judge
The trial court found the plaintiff had suffered a work-related injury and awarded 7 percent permanent partial disability to the right arm. We reverse the judgment of the trial court and dismiss this case.
Knox
Workers Compensation Panel
Tammy Jean Dedmon v. Tennessee Food Services, Inc. d/b/a W2001-00067-WC-R3-CV
Authoring Judge: W. Michael William Michael Maloan, Special Judge
Trial Court Judge: C. Creed Mcginley, Judge
In this appeal, the employer contends the evidence preponderates against the trial court's award of twenty-five percent (25%) permanent partial disability to the body as a whole. For the reasons stated in this opinion, We affirm the judgment of the trial court.
Henry
Workers Compensation Panel
Timothy Tidwell v. Verplank Enterprises, Inc. M2000-00551-WC-R3-CV
Authoring Judge: John K. Byers, Sr. J.
Trial Court Judge: Jim T. Hamilton, Circuit Judge
This workers' compensation appeal has been referred to the Special Workers' 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 Chancery Court is Affirmed JOHN K. BYERS, SR. J., in which FRANK F. DROWOTA, III, J. and JOSEPH C. LOSER, JR., SP. J., joined. Joseph M. Huffaker, Nashville, Tennessee, for the appellant, Verplank Enterprises, Inc. Robert D. Massey, Pulaski, Tennessee, for the appellee, Timothy D. Tidwell. OPINION Facts At the time of this trial, which was held on January, 4, 2, the plaintiff was 36 years of age. He had graduated from high school and had vocational training in combination welding. The plaintiff was in the United State Air Force for six years where he worked as a combination welder. The plaintiff's work history and training are almost exclusively as a welder. On July 28, 1998, the plaintiff was working for the defendant. On that date, he was moving a casket lid from a saw to a table. The plaintiff felt a burning sensation in his shoulder as he did so. The defendant referred the plaintiff for medical care and the plaintiff was seen by Dr. Lloyd Johnson, an orthopedic surgeon, a physician approved by the defendant. The plaintiff was seen by Dr. John McInnis on one occasion at the request of the defendant for evaluation. The plaintiff was unable to continue working for the defendant because of the injury. Medical Evidence Dr. Johnson first saw the plaintiff on September 29, 1998, and determined he had sustained a cervical strain and an injury to his right shoulder. Dr. Johnson saw the plaintiff again on October 13, 1998 after an MRI had been done. The MRI showed the plaintiff had a bulging disc at C4-C5. Dr. Johnson was of the opinion the plaintiff's bulging disc was caused by the injury of July 28, 1998. Dr. Johnson continued to see the plaintiff over the course of several months, during which he found the plaintiff's range of motion was diminished and that he was continuing to have pain as a result of the injury. Dr. Johnson placed permanent restrictions of lifting up to 5 pounds frequently, 65 pounds occasionally and to not work with a helmet (hard hat) for more than one hour at a time twice a day. Dr. Johnson found the plaintiff suffered a 12 percent whole body permanent disability as a result of the injury. Dr. John McInnis examined the plaintiff on behalf of the defendant for the purpose of evaluation. The examination was done on April 15, 1999. Dr. McInnis found there was some loss of motion in the plaintiff's spine and that he had a chronic strain of the muscle in the neck and of the trapezius muscle. Dr. McInnis would restrict the plaintiff from lifting more than five or ten pounds above his shoulders and was of the opinion his work as a welder may accentuate the plaintiff's neck pain. Dr. McInnis was of the opinion the plaintiff had sustained a 5 percent permanent medical impairment to the body as a whole. Discussion The defendant's first contention that the evidence does not support the finding of the trial court that the plaintiff suffered a worker's compensation disability of 72 percent is because the trial court relied upon the testimony of Dr. Johnson, who, according to the defendant, did not properly evaluate the plaintiff under the A.M.A. guidelines. The defendant's complaint is that Dr. Johnson's evaluation is not in compliance with the A.M.A. Guidelines because Dr. Johnson did not use an inclinometer in determining the range of motion as set out in the guidelines. Dr. Johnson testified he followed the A.M.A. Guideline and these allowed the use of other methods of determining loss of motion if the injury did not fit within the definition of the Guidelines. He was of the opinion that the plaintiff's injury fit the exception and proceeded accordingly. The defendant insists that Tennessee Code Annotated _ 5-6-24(d)(3), which directs the use of the guidelines is for the purpose of standardizing the method of rating disabilities. See Corcoran v. Foster Auto GMC, Inc.,746 S.W.2d 452 (Tenn. 1988). The defendant argues, therefore, that Dr. Johnson's evaluation should be rejected. The defendant contends that the only reliable medical testimony is that of Dr. McInnis, who used the inclinometer in determining the plaintiff's range of motion. The defendant argues, therefore, that the impairment rating of 5 percent found by Dr. McInnis should control. Based upon this, the defendant says the award should not be more than 3 percent vocational impairment. We find the defendant's assertions on the issue not to be persuasive. Dr. McInnis found the only -2-
The defendant pled guilty to burglary (Count One), theft (Count Two), and vandalism (Count Three) and was sentenced pursuant to a plea agreement to two (2) years for Count One and eleven months and twenty-nine days for both Count Two and Count Three. Counts Two and Three were to be served concurrently but consecutively to Count One. The judgment forms entered for each count indicated that the defendant was to receive 201 days of pretrial jail credit. Sixteen months after the final judgments were entered, the state moved the trial court to correct the original judgments pursuant to Tennessee Rule of Criminal Procedure 36. Thereafter, corrected judgments were entered for Counts Two and Three indicating that the defendant was to receive 0 days pretrial jail credit on those counts. Generally, a trial court loses jurisdiction to amend a judgment once it becomes final. After a thorough review of the record, we conclude that the trial court did not make a finding as to whether there was a clerical mistake or mistake of law in the original judgments. Absent a finding that there was a clerical mistake, the trial court was without jurisdiction to alter the final judgments. Therefore, we reverse the judgments as corrected and remand to the trial court for determination of whether there was a clerical error in the original judgments.
In this workers' compensation appeal, an employee was allegedly injured in the course and scope of her employment. While purportedly seeking medical treatment for these injuries, she contracted an infection and died. The employer filed suit in the Davidson County Chancery Court claiming that no compensable injury occurred and that the employee used the excuse of an injury to seek prescription drugs for her addiction. The trial court held for the employer and later granted the employer's motion for discretionary costs. The Special Workers' Compensation Appeals Panel reversed, finding that a preponderance of the evidence established that a work-related injury did occur and that the employee died as a result of seeking treatment for those injuries. We then granted the employer's application for full court review and hold that the trial court's findings are supported by a preponderance of the evidence. We also hold that the trial court did not abuse its discretion in awarding discretionary costs to the employer. The judgment of the Davidson County Chancery Court is affirmed.
The primary issue in this case is whether a trial court may use the common fund doctrine in a wrongful death action to spread attorneys' fees equitably among the surviving beneficiaries of the action. The trial court consolidated two wrongful death actions, which were brought by the surviving spouse and children of the decedent, and it gave the surviving spouse control of the consolidated action. After the suit was settled, the trial court awarded the surviving spouse's attorney one-third of the settlement proceeds as a fee. On appeal, the children argued that the trial court improperly awarded fees to the surviving spouse's attorney from their share of the settlement because they possessed no contract with that attorney. A majority of the Court of Appeals held that although the award of fees could be proper under the common fund doctrine, the case should be remanded to resolve factual ambiguities in the record. We granted permission to appeal and hold that a trial court has the discretion to apply the common fund doctrine to the proceeds of a wrongful death action, thereby obliging the beneficiaries of that action to pay a reasonable fee to the attorney procuring the judgment or settlement. We also hold that the record contains no evidence showing that the trial court abused its discretion in awarding fees to the surviving spouse's attorney. The judgment of the Court of Appeals is affirmed in part and reversed in part.
Knox
Supreme Court
John Pitt d/b/a Pitt Excavating vs. Tyree Org. Ltd. & Doug Suess Concrete M2001-00115-COA-R3-CV
Authoring Judge: Judge W. Frank Crawford
Trial Court Judge: Irvin H. Kilcrease, Jr.
This is a declaratory judgment action involving the interpretation and application of an indemnification provision contained in a construction contract. Defendant, Doug Suess d/b/a Doug Suess Concrete (hereinafter "Suess"), appeals from the final order of the trial court granting summary judgment to both plaintiff, John Pitt, II d/b/a Pitt Excavating (hereinafter "Pitt") and defendant, Tyree Organization Limited (hereinafter "Tyree"). We reverse.
Davidson
Court of Appeals
Kay E. Duncan v. Modine Manufacturing Co., Inc. and Jim E2000-02995-WC-R3-CV
Authoring Judge: John K. Byers, Sr. J.
Trial Court Judge: James B. Scott, Judge
The trial court found that in the current work-related injury the plaintiff sustained an 8 percent permanent partial disability to the body as a whole and a 15 percent permanent partial disability to the body as a whole as a result of an aggravation of her pre-existing depression. The plaintiff had previously sustained a work-related carpal tunnel injury and received an award of 35 percent for the injury, which was stipulated to convert to 17.5 percent. The trial court found the plaintiff's current 95 percent disability coupled with her pre-existing right arm condition rendered her permanently and totally disabled in accordance with Tennessee Code Annotated _ 5-6-27(4)(A)(i). The trial court assessed 82.5 percent of the award to the defendant employer and the balance to the Second Injury Fund. We affirm the judgment of the trial court and remand the case to the trial court for entry of such orders as are necessary to carry out the judgment.
Knox
Workers Compensation Panel
Travelers Indemnity Co. vs. Kenton Freeman, et al M2001-00657-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: Ellen Hobbs Lyle
Travelers Indemnity Company [Travelers] filed a complaint for a declaratory judgment respecting its liability to pay UM coverage for the minor child of its policyholder who was divorced from the child's mother, with joint custody having been awarded. Mother was killed in a traffic accident in Alabama; her passenger child was injured. Mother owned and was driving her automobile, and she also had UM coverage. The adverse driver had split liability coverage all of which was paid, in equal parts, to the Administrator of the mother's estate, and to the minor child. Mother's UM carrier paid its entire policy proceeds to her administrator. Travelers objected, inter alia, to the lack of allocation of the proceeds of mother's UM coverage. Travelers' insured, on behalf of his minor child, filed a counter-claim against Travelers for the entire UM coverage, notwithstanding an amount certain had never been determined. The court found that Travelers had never disputed that the value of the minor child's claim exceeded the UM coverage and rendered a summary judgment against Travelers for an amount certain. We vacate and remand.
Davidson
Court of Appeals
Rutherford County vs. Martha Wilson M2000-01382-COA-R3-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: Don R. Ash
This appeal involves a dispute over the interpretation of a grant of real property giving a life estate to the grantor's daughter with the remainder to go to the "heirs of her body" and, if at her death there were none, to the grantor's heirs at law. Rutherford County condemned a portion of the property, and the parties dispute apportionment of the condemnation proceeds. The life tenant is still living; therefore, her life estate has not terminated. However, the widow of the life tenant's deceased son claims that she has a one sixth (1/6) interest in the property because her husband owned a vested transmissible interest in the remainder, which passed in part to his widow on his death by intestate succession. The trial court found that Tennessee's statute governing class gifts requires that the son's issue, living at the termination of the life estate, would take his share of the remainder. Therefore, the widow would not be entitled to a portion of the remainder. The widow now appeals to this court. For reasons discussed herein, we affirm the trial court's determination that the widow had no interest in the remainder.
Rutherford
Court of Appeals
State of Tennessee v. Chivous Sirrel Robinson E2001-00865-CCA-R3-CD
Authoring Judge: Judge Jerry L. Smith
Trial Court Judge: Judge Richard R. Baumgartner
The defendant, Chivous Sirrel Robinson, was convicted of one count of solicitation to commit first degree murder and one count of second degree murder. He was sentenced to twenty-three years incarceration for the second degree murder conviction and nine years incarceration for the solicitation conviction. The sentences were ordered to run consecutively. In this appeal the defendant argues that (1) the trial court erred in declining to admit at the defendant's request the redacted statement of Toni Hill, the alleged co-perpetrator of the murder, (2) the trial court erred in denying the defense's motion to sever the solicitation count from the substantiative murder count for purposes of trial, (3) the trial court erred in admitting certain photographs of the victim's body, and (4) the trial court erred in ordering consecutive sentencing.
