Charles Montague vs. State
E2000-00083-CCA-R3-PC
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Lynn W. Brown
Charles Montague appeals the Washington County Criminal Court's summary dismissal of his pro se post-conviction petition challenging his conviction for first degree murder. The appellant's original and supplemental petitions with attached affidavit present a myriad of claims within the trial process. The post-conviction court dismissed all claims without a hearing, finding the original and supplemental petitions were not properly verified and that the petitions failed to assert a sufficient factual basis for relief. After review of the petition, we affirm the post-conviction court's dismissal of certain claims and vacate its dismissal as to others. The case is remanded to the post-conviction court for further review of the surviving claims.
Washington
Court of Criminal Appeals
Inscoe, et al vs. Kemper, et al
M1999-00741-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Tom E. Gray
This appeal arises from a suit filed by Inscoe seeking the return of earnest money held in escrow for the purchase of Kemper's residence. When Inscoe decided not to purchase the residence, Kemper refused to return the earnest money. The trial court found in favor of Inscoe and ordered the return of the earnest money. In making its finding, the court stated that Inscoe's promise to buy was illusory and there was no meeting of the minds, thus the contract was void and unenforceable. Kemper appeals.
Sumner
Court of Appeals
State vs. Manolito Jemison
M1999-00752-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Steve R. Dozier
The defendant was found guilty by a Davidson County jury of the lesser offense of voluntary manslaughter on one count of first degree premeditated murder and the lesser offense of reckless homicide on one count of felony murder. The counts were merged into one conviction for voluntary manslaughter, and the defendant was sentenced as a Range I, standard offender to six years in confinement. In this appeal as of right, the defendant challenges the sufficiency of the evidence to support a conviction for voluntary manslaughter and the length of his sentence, arguing that the trial court erroneously applied one enhancement factor and failed to apply two mitigating factors. Based upon our review, we agree that an enhancement factor was improperly applied. However, since two other enhancement factors were properly applied, and the evidence was sufficient to support the conviction, we affirm the judgment of the trial court.
Davidson
Court of Criminal Appeals
Merritt vs. Yates
M1999-00775-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Ellen Hobbs Lyle
This appeal involves a dispute between Plaintiff June Yates Merritt ("Ms. Merritt") and Defendants Aileen Biron Yates ("Mrs. Yates") and Claire Biron ("Mr. Biron") regarding the proper interpretation or construction of mutual wills executed in April of 1985 by Mrs. Yates and her husband Thomas Harry Yates ("Mr. Yates"), who was the father of Ms. Merritt. After the death of Mr. Yates in December of 1985, Mrs. Yates deeded certain real property to Mr. Biron, gifted certain personal property to Mr. Biron, and established a revocable trust using money received as a result of her husband's death. In an action filed by Ms. Merritt challenging these transactions, the trial court determined that there were no genuine issues of material fact and entered a judgment in favor of Ms. Merritt. Additionally, the court denied Ms. Merritt's motion for discretionary costs. Mrs. Yates appeals the court's order granting a judgment in favor of Ms. Merritt and Ms. Merritt appeals the court's ruling regarding her motion for discretionary costs. For the reasons set forth below, we affirm the ruling of the trial court.
Davidson
Court of Appeals
Glenda Faye Tolliver v. National Health Care
E1999-01017-WC-R3-CV
Authoring Judge: Lafferty, Sr. J.
Trial Court Judge: Daryl R. Fansler, Chancellor
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 a hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The trial court found that the plaintiff sustained an accidental injury during her employment with the defendant and that the trial court awarded the plaintiff a twelve and one-half (12-_) percent vocational disability. After a complete review of the record, briefs of the parties and applicable law, we affirm. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Chancery Court is Affirmed. LAFFERTY, SR. J., in which BARKER, J., and PEOPLES, SP. J., joined. Robert W. Knolton, Oak Ridge, Tennessee, for the appellant, National Health Care Corporation. William A. Hotz, Knoxville, Tennessee, for the appellee, Glenda Faye Tolliver. MEMORANDUM OPINION The plaintiff, age 4, is a licensed practical nurse and a certified nursing assistant instructor. On March 6, 1996, the plaintiff was assisting Tracey Bunch, a nursing assistant trainee, in transferring a patient from a bed to a wheelchair in the defendant's health care center. The plaintiff testified that she felt pain in the right side of her neck, down her shoulders and at the base of her skull. The pain was in the cervical area and the right arm. The pain increased and the following day the plaintiff informed her supervisor. She was referred to Dr. Watson and then to Dr. Uzzle. The plaintiff testified that she had two past injuries, (1) in 199, she sustained a cervical strain while working. Her MRI was negative and she returned to work; (2) in 1993, she fell at the Cracker Barrel injuring her elbow, "it stoved up her neck" and she also injured her left knee. She returned to work. After treatment for her injury of March 6, 1996, the plaintiff returned to work on light duty. The plaintiff requested that her return be limited to an instructor, but she was made a supervisor on the three to eleven shift. On the same day that the plaintiff returned to work, she was fired. At the time of trial, the plaintiff was working two jobs, one as an LPN at the UT hospital and as a supervisor for Helen Ross McNabb, a rehabilitation center. The plaintiff testified that she has problems doing her work, such as giving EKG's, lifting woman's breast, and any computer work, since she must keep her head down. The plaintiff cannot work the floor, lift patients and deliver meal trays. By deposition, Tracey Michelle Bunch testified that on March 6, 1996, she was working as a nursing assistant trainee, working on her certified nursing assistant certification, when the plaintiff assisted her in moving an elderly patient in and out of bed. The plaintiff did not complain of any injury, but the following day the plaintiff was not available as the instructor. The following Monday, Ms. Bunch saw the plaintiff at work answering calls at the nurse's station. The plaintiff had to make a full body turn instead of just a simple head turn. Keri Trammell, Director of the National Health Center, testified that she hired the plaintiff as an instructor for the certified nursing assistant program and as an LPN supervisor. She stated that she was familiar with the report of March 6, 1996, and that the plaintiff was referred to see Dr. Uzzle. The plaintiff was allowed to continue to work but on light duty. About May 1, 1996, Dr. Uzzle removed these restrictions. On May 29, 1996, Ms. Trammell called the plaintiff into her office and advised the plaintiff, based upon the medical reports, that she would be returned to a supervisor's position. The plaintiff refused to accept the supervisor's position, stating that she could only work as an instructor. MEDICAL EVIDENCE By deposition, Dr. Maren L. Watson, a family practitioner, testified that he saw the plaintiff on March 11, 1996, with a complaint of neck pains as well as headaches. The plaintiff advised Dr. Watson that she was lifting a patient at the National Health Center and that evening the pain got worse. In his examination, Dr. Watson found that the plaintiff's vital signs were normal, she was in no distress and cooperative with the exam. As to the musculoskeletal exam, Dr. Watson palpated the plaintiff's neck, upper back and shoulders and found generalized mild tenderness. Although Dr. Watson found no muscle spasms, he did note that the plaintiff's right shoulder was resting one inch lower than her left shoulder. Dr. Watson opined that the plaintiff certainly sustained a cervical muscle strain due to lifting a patient and this caused some pain in her neck that had radiated to her shoulders and middle back, which warranted a few days off from work. Dr. Watson testified that the plaintiff was unhappy with his recommended course of treatment and he did not see her again. Dr. Watson could not give an opinion as to any assessment for physical impairment for the plaintiff. -2-
Knox
Workers Compensation Panel
Beavers vs. The Lebanon Democrat Newspaper
M1999-02401-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Tom E. Gray
This appeal arises from an action initiated by Plaintiffs, Mae and Jerry Beavers, against the Defendant newspaper, the Lebanon Democrat, for libel and slander. The Beavers' claim arises out of two separate articles published by the newspaper. The trial court granted the newspaper's motion for summary judgment, holding that the first article was substantially true and the second article was a non-actionable opinion. The Beavers appeal.
State v. Dwanna L. Mason
M1999-02535-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Frank G. Clement, Jr.
The defendant pled guilty in Davidson County Criminal Court to vehicular homicide by reckless conduct, a Class C felony, and four lesser charges against her were dismissed. Her guilty plea was submitted without any agreement of the parties as to length or manner of service of sentence. After a sentencing hearing at which the defendant testified, the trial court sentenced her to five years and six months in continuous confinement. The defendant appeals as of right this sentence. We conclude that the imposition of a sentence of five years and six months was appropriate. We affirm the sentence as to length but modify it to show a period of confinement equal to time already served with the remaining time to be served on probation.
Davidson
Court of Criminal Appeals
In Re: S.D., M.D., Sh.D., & Ma.S.
M2003-02672-COA-R3-PT
Authoring Judge: Judge William B. Cain
Trial Court Judge: Barry R. Brown
This case comes before the Court on appeal from the Sumner County Juvenile Court's termination of Appellant's parental rights as to four children. Each parent raises separate issues on appeal. We affirm the action of the trial court in all respects.
Sumner
Court of Appeals
James Powell vs. M.P. Gurkin
W1999-00827-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Jon Kerry Blackwood
This is a personal injury action arising out of a slip-and-fall accident which occurred at a laundromat owned by the Gurkin Defendants. The fall was allegedly caused by a hole in the floor of the laundromat which was created by the Defendant Hardin in attempting to locate and repair a water leak in the laundromat. The Plaintiff fell while walking into the laundromat carrying his laundry basket. He brought the present suit claiming that the Defendants were negligent in failing to repair the hole or providing adequate warning of the dangerous condition. The Defendants filed a Motion for Summary Judgment claiming that the Plaintiff failed to use reasonable care in confronting a known risk. After arguments of counsel, the trial court granted both Defendants' Motions for Summary Judgment.
Fayette
Court of Appeals
John Watson vs. Mike Young
W1999-00683-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: R. Lee Moore Jr.
This appeal arises from a lawsuit filed by an inmate at the Northwest Correctional Complex. The complaint sought damages for personal injuries sustained as a result of an electrical shock allegedly caused by the Defendant's inactions. The Lake County Circuit Court dismissed the complaint finding that the plaintiff's claim sounded in negligence and the defendants, as state employees, enjoyed absolute immunity from negligence claims.
Lake
Court of Appeals
State vs. Morris
W1998-00679-SC-DDT-DD
Authoring Judge: Justice E. Riley Anderson
Trial Court Judge: John Franklin Murchison
Madison
Supreme Court
State vs. Henderson
W1998-00342-SC-DDT-DD
Authoring Judge: Justice William M. Barker
Trial Court Judge: Jon Kerry Blackwood
Fayette
Supreme Court
State vs. Henderson
W1998-00342-SC-DDT-DD
Authoring Judge: Justice William M. Barker
Trial Court Judge: Jon Kerry Blackwood
Fayette
Supreme Court
State vs. Jeffrey Wayne Adkisson
E1999-01316-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: E. Eugene Eblen
The defendant, convicted of one count of D.U.I., argues that the evidence was insufficient and that a police report submitted as evidence was unfairly redacted. After review, we find no reversible error and therefore affirm the judgment from the trial court.
This is a medical malpractice case. The paintiff’s husband died of a cardiac rupture while in the care of the defendant physicians. The plaintiff filed a wrongful death suit, asserting medical malpractice in the care of her husband. The trial court granted summary judgment to the defendant doctors, finding that the plaintiff’s expert’s testimony failed to show that a breach of the standard of care by the defendants caused the death of the plaintiff’s husband. The plaintiff appeals. We affirm, finding that the plaintiff did not present evidence that, to a reasonable degree of medical certainty, a breach of the standard of care by the defendants caused the death of the decedent. Tenn. R. App. P. 3; Judgment of the trial court is affirmed
A Lincoln County jury convicted the appellant, Douglas Bowers, of one (1) count of the delivery of 0.2 grams of cocaine, a Class C felony. The trial court sentenced the appellant as a Range II offender to nine (9) years and six (6) months incarceration. On appeal, the appellant contends that: (1) the evidence is insufficient to sustain his conviction; (2) the trial court erred in denying the appellant's request to instruct the jury on the "procuring agent defense"; and (3) the sentence imposed by the trial court was excessive. After thoroughly reviewing the record before this Court, we conclude that the state presented sufficient evidence to sustain the appellant's conviction for delivery of a Schedule II controlled substance. Furthermore, because the "procuring agent defense" has been abolished by statute, the trial court did not err in failing to so instruct the jury. Finally, we conclude that the sentence imposed by the trial court was appropriate. The judgment of the trial court is affirmed.
The Defendant was found guilty by a Davidson County jury of driving with a blood alcohol concentration of .10 percent or more (D.U.I. per se) and driving on a revoked license. In this appeal as of right, he argues that the trial court erred by admitting the results of his breathalyzer test because the admission of this evidence in a D.U.I per se case violates a defendant's confrontation rights. We hold that the trial court did not err by admitting the Defendant's breath test results. Accordingly, we affirm the Defendant's conviction.
The appellant/petitioner, Frank Holiday, appeals as of right from a dismissal of his petition for post-conviction relief by the Davidson County Criminal Court on the basis that the petition was barred by the statute of limitations. The petitioner, pro se, presents one appellate issue: Did the trial court err in failing to appoint counsel and conduct an evidentiary hearing in this matter, in view of the egregious failure of counsel to protect the petitioner's right to an appeal, and if not, is the petitioner entitled to a delayed appeal?
Davidson
Court of Criminal Appeals
Brent Brown v. Continental Baking Company
W1999-02700-SC-WCM-CV
Authoring Judge: F. Lloyd Tatum, Senior Judge
Trial Court Judge: Karen R. Williams, Judge
This case involves a work-related injury to the plaintiff's left shoulder on August 17, 1992. The trial court heard the evidence on July 2, 1998, and found that the plaintiff sustained a compensable 12.5 percent permanent partial disability to the left shoulder but that the injury he claimed to the right shoulder was not work-related. The trial court also rejected the plaintiff's argument that he did not have a meaningful return to work and found that the two and one-half (2.5) times cap in Tennessee Code Annotated _ 5-6-241(a) applied. The plaintiff appealed pro se and raised the following issues for our review: (1) whether the plaintiff's right shoulder injury was work-related; (2) whether the plaintiff should be compensated for a second surgery on the right shoulder and both feet; (3) whether the original complaint was not re-filed properly; (4) whether there should have been a court reporter present at the hearing; and (5) whether evidence was improperly withheld from the court in his case. After careful review, we find that we must affirm the trial court's judgment.
This is an appeal from the Criminal Court for Shelby County which convicted the defendant of premeditated first degree murder, especially aggravated robbery and conspiracy to commit aggravated robbery. The defendant filed a motion for a new trial and argued that the evidence was insufficient to sustain a conviction for premeditated murder. The court overruled the motion, and the defendant appealed. The Court of Criminal Appeals concluded that the evidence was insufficient to sustain a finding that the defendant was the principal actor in causing the death of the victim. Nevertheless, the court found that his conviction could be sustained under a theory of criminal responsibility for premeditated murder because premeditated murder was a natural and probable consequence of aggravated robbery under the facts of the case. We then granted the defendant's application for permission to appeal. We hold that the natural and probable consequences rule can be used to sustain a defendant's conviction for first-degree premeditated murder based upon criminal responsibility for the conduct of a co-defendant. The jury, however, must be instructed on all elements of a charge of criminal responsibility, including the natural and probable consequences rule. Because the jury was not instructed on the natural and probable consequences rule, the defendant's conviction for first degree premeditated murder is reversed, and this case is remanded to the trial court for a new trial.
A divorce decree was filed in 1993 with the marital assets being divided by agreement of these parties. The decree awarded Husband’s military retirement benefits to Wife “as a division of marital property.” The decree also provided that inasmuch as Wife was to receive that pension, she should be responsible for the support of the parties’ two minor children. In 1999, after the children reached majority, Husband filed this “Petition to Discontinue Child Support and Modify Final Judgment by Restoring Retirement Benefits.” The Trial Court held that the divorce decree ordered Husband to pay Wife his military pension as a division of marital property, not child support, and therefore declined to modify the original decree. We affirm the judgment of the Trial Court.
I agree with the majority’s conclusion that there is no basis for invalidating the 1993 award to Wife of Husband’s Air Force retirement -- an award made by the trial court “as a division of marital property.” As a part of an unappealed-from final judgment, the trial court’s division-ofproperty award is not subject to challenge in this proceeding, see Vanatta v. Vanatta, 701 S.W.2d 824, 827 (Tenn. Ct. App. 1985), in the absence of a Tenn. R. Civ. P. 60.02 basis for relief, and I find no such basis in the meager record before us.
Blount
Court of Appeals
Ingram Industries, Inc. v. Carless Dyke Keller
E1999-00703-WC-R3-CV
Authoring Judge: Lafferty, Sr. J.
Trial Court Judge: Telford E. Forgety, Jr., 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- 225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The trial court awarded the plaintiff 24 percent vocational disability to the body as a whole. The defendant contends that the preponderance of the evidence does not support thetrial court's award. We affirm.
Knox
Workers Compensation Panel
State vs. David Barron
W1999-01134-CCA-R3-PC
Authoring Judge: Judge J. Curwood Witt, Jr.
Trial Court Judge: C. Creed Mcginley
