James McClennon v. State of Tennessee
M2005-01123-CCA-R3-PC
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Cheryl A. Blackburn

The petitioner, James McClennon, appeals the denial of his petition for post-conviction relief in which he asserted various instances of ineffective assistance of counsel. A review of the record reveals support for the findings of the post-conviction court. We affirm.

State of Tennessee v. Robert L. Mitchell
M2005-01652-CCA-R3-CD
Authoring Judge: Presiding Judge Gary R Wade
Trial Court Judge: Judge Steve R. Dozier

The defendant, Robert L. Mitchell, was convicted of especially aggravated kidnapping, two counts of aggravated kidnapping, and assault. Later, the two aggravated kidnapping convictions were merged. The trial court sentenced the defendant as a violent offender to twenty-five years for the especially aggravated kidnapping, twelve years for the aggravated kidnapping, and eleven months and twenty-nine days for the assault. Because the kidnapping sentences are to be served consecutively, the effective sentence is thirty-seven years. In this appeal of right, the defendant claims that (1) the evidence is insufficient to support his kidnapping convictions; (2) the trial court erred by admitting evidence of prior bad acts; and (3) his sentence is excessive. The judgments of the trial court are affirmed.

State of Tennessee, ex rel., Sharon Denise Townsend v. Eric Wayne Williamson
W2004-02980-COA-R3-JV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Referee Claudia S. Haltom

This appeal concerns two related, but distinct, proceedings in Juvenile Court. One was a custody proceeding, and the other a contempt of court proceeding arising from a failure to comply with child support obligations. Separate docket numbers were assigned to each case. After a judgment was rendered in the contempt proceeding, the father filed a notice of appeal. Several months later, another judgment was rendered in the custody modification proceeding. No notice of appeal was filed for the custody modification proceeding. After the case was appealed to the Court of Appeals, the father obtained a consolidation order from the Juvenile Court. On appeal, the father argues only that the Juvenile Court erred in its custody order. Finding that neither of the two orders is final and appealable, we must dismiss the father’s appeal based upon a lack of jurisdiction and remand all proceedings to the Juvenile Court.

State of Tennessee v. Larry Payne
W2005-00679-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Joseph B. Dailey

A Shelby County Criminal Court jury convicted the appellant of four counts of aggravated robbery against two victims, and the appellant received an effective thirty-six-year sentence. In this appeal, the appellant claims (1) that the evidence is insufficient to support the convictions; (2) that the trial court erred by requiring Detention Response Team personnel to sit next to him in the courtroom and while he testified; and (3) that his sentences are excessive. After a thorough review of the record, we conclude that the four convictions should be merged into two convictions and that the case should be remanded for entry of corrected judgments consistent with this opinion. In all other respects, the judgments of the trial court are affirmed.

Monica D. Perry v. Gap, Inc.
M2004-02525-WC-R3-CV
Authoring Judge: William H. Inman, Sr. J.
Trial Court Judge: C. K. Smith, Chancellor
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Tennessee Supreme Court in accordance with Tennessee Code Annotated section 5-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The treating specialist found the Employee not to be impaired due to a pinched nerve in her neck, which was resolving. An independent medical examiner [IME] testified that she retained an 8 percent permanent partial disability impairment. The trial judge accepted the opinion of the IME and awarded the Plaintiff 2 percent permanent partial disability. We do not find that the evidence preponderates against the holding of the trial court. Accordingly, the judgment of the trial court is affirmed. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Chancery Court Affirmed WILLIAM H. INMAN, SR. J., in which CORNELIA A. CLARK, J., joined and ROBERT E. CORLEW III, SP. J., filed a dissenting opinion. Richard C. Mangelsdorf, Jr. and Stephen B. Morton, Nashville, Tennessee, attorneys for Appellant, Gap Inc. William Joseph Butler and E. Guy Holliman, Lafayette, Tennessee, attorneys for Appellee, Monica Perry. MEMORANDUM OPINION The Employee alleged that in February 23 she suffered an injury to her neck and left shoulder, and in July and August 23 she suffered a gradual injury to her left and right hands, wrists and to both arms. She specifically alleged temporary total disability,1 and permanent partial disability, for which she sought workers' compensation benefits. The complaint was answered in course. The Employer disclaimed knowledge of gradually occurring injuries and "demanded strict proof of the Plaintiff's claimed entitlement to benefits" while admitting the occurrence of the February 26, 23 accident. Trial was held August 31, 24. The earlier filed depositions of doctors Thomas Tompkins and Walter Wheelhouse were considered by the trial judge, who, following a brief recess, filed a 24- page memorandum opinion emphasizing the testimony of the Employee and awarding her benefits for 2 percent vocational disability. The Employer appeals, asserting that: (1) the trial court erred in denying the Employer's motion to compel an independent medical exam of the Employee pursuant to Tennessee Code Annotated section 5-6-24(d)(1) and Rule 35.1 of the Tennessee Rules of Civil Procedure; (2) the evidence preponderates against the degree of vocational disability found by the trial court; and (3) the Employee is not entitled to a disability award pursuant to Tennessee Code Annotated section 5- 6-25(a) and the policies behind the Workers' Compensation Act. Appellate review is de novo on the record, accompanied by a presumption that the judgment is correct unless the evidence otherwise preponderates. Tenn. R. App. P. 13(c); Tenn. Code Ann. _ 5-6-225(e); Lollar v. Wal-Mart Stores Inc., 767 S.W.2d 143, 149 (Tenn. 1989). Discussion The Employee is twenty-seven years old, and a single mother of three children. She completed the eighth grade, and has no vocational or occupational skills. She was employed by the Employer when she was eighteen years old. In February 23, she testified that she injured her neck and shoulder during the course of her job in "wand and loading," which she described as loading the trailers with boxes of clothing, ranging in weight from 2 pounds to 5 pounds. She felt a sharp pain in her neck which ran through her shoulder. She was seen and treated by Dr. Tompkins on numerous occasions, but contends that no visit or treatment ever exceeded three minutes. She last saw Dr. Tompkins in August 23, but her pain and numbness continued, interfering with her ability to perform simple household tasks. She never complained at work about her condition. She never mentioned to a supervisor that she was hurting, explaining that if she "said anything she would be put out of work." She earns $13.89 per hour, with health insurance benefits. The Employee takes ibuprofen daily, but admitted she never asked her treating physician for 1 The Employee did not sign the complaint, and it was developed at trial that she lost no time from work, thus negating and refuting this portion of her claim. See Tenn. R. Civ. Pro. 11(3). -2-

Harlan B. Embry v. United Parcel Service, Inc., Liberty Mutual Fire Insurance Company, and the Administrator of the Tennessee Second Injury Fund
M2004-02395-WC-R3-CV
Authoring Judge: Special Judge Robert E. Corlew
Trial Court Judge: Chancellor Hon. Richard Dinkins

This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Tennessee Supreme Court in accordance with the provisions of Tennessee Code Annotated section 50-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The Employee has appealed the findings of the trial court, which determined that the Employee is entitled to recover benefits for a permanent partial disability rating of 12.5% apportioned to the right upper extremity and no disability to the left upper extremity, both cubital tunnel injuries. The trial court also found no compensable injury accorded to the Employee's claim for benefits due to his bilateral carpal tunnel syndrome. Further, the Employee appeals from the failure of the trial court to award discretionary costs to him pursuant to the provisions of Rule 54.04 of the Tennessee Rules of Civil Procedure. Finally, the Employee has asked the Panel to consider post-judgment facts and render a decision with regard to interest. We hold that the judgment should be affirmed in part, reversed in part, and remanded.

In Re. Thomas P.
E2005-01367-COA-R3-PT
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Jeffrey D. Rader

The trial court terminated the parental rights of Rene V. (“Mother”) to her child, Thomas P. (DOB: September 27, 2000),1 upon finding, by clear and convincing evidence, that grounds for terminating her parental rights existed and that termination was in the best interest of the child. Mother appeals.  We affirm.

State of Tennessee v. Chad Michael Knight
M2005-00779-CCA-R3-CD
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge Michael R. Jones

The Appellant, Chad Michael Knight, appeals the sentencing decision of the Montgomery County Circuit Court. Following a jury trial, Knight was convicted of reckless endangerment, a Class A misdemeanor, and aggravated child abuse, a Class A felony, and sentenced to an effective term of twenty years, eleven months, and twenty-nine days in confinement. On appeal, Knight argues that the trial court erred in: (1) failing to apply various sentencing considerations which would have served to mitigate his sentence, as authorized by Tennessee Code Annotated section 40-35-113(13) (2003); and (2) refusing to sentence him as an especially mitigated offender in accordance with Tennessee Code Annotated section 40-35-109 (2003). After review of the record, we affirm the judgment of the trial court.

Jerry Duke, d/b/a Moscow Manor Apartments v. Browning-Ferris Industries of Tennessee, Inc., et al.
W2005-00146-COA-R3-CV
Authoring Judge: Presiding Judge W. Frank Crawford
Trial Court Judge: Judge Jon Kerry Blackwood

Plaintiff/Appellant filed suit against Defendants/Appellees claiming that Defendants/Appellees had violated the Tennessee Trade Practices Act, the Tennessee Consumer Protection Act, and the common law doctrines of good faith and fair dealing, and unjust enrichment in its contracting for commercial waste hauling services in the Memphis area. The trial court granted summary judgment in favor of Defendants/Appellees on both the statutory violation claims and the common law claims. We affirm.

James Jackson v. Tennessee Department of Correction, et al.
W2005-02239-COA-R3-CV
Authoring Judge: Judge Alan E. Highers
Trial Court Judge: Chancellor Martha B. Brasfield

A prisoner in the custody of the Tennessee Department of Correction filed a pro se petition for common law writ of certiorari in the trial court seeking to contest the prison disciplinary board’s findings. The department filed a motion to dismiss for lack of subject matter jurisdiction, citing the petition’s lack of notarization, its failure to state that it was the first application for the writ, and the prisoner’s failure to file it within sixty (60) days of the administrative action. The trial court granted the department’s motion to dismiss. The prisoner filed a motion for a new trial asserting that he complied with Tennessee Rule of Civil Procedure 5.06. The trial court denied the motion. The prisoner timely filed an appeal to this court. We affirm the dismissal of the petition.

Tommy Dixon v. State of Tennessee
W2005-02921-CCA-R3-HC
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge R. Lee Moore Jr.

The Petitioner, Tommy Dixon, appeals the trial court's denial of his petition for habeas corpus relief. The State has filed a motion requesting that this Court affirm the trial court's denial of relief pursuant to Rule 20, Rules of the Court of Criminal Appeals. Petitioner has failed to allege any ground that would render the judgments of conviction void. Accordingly, we grant the State's motion and affirm the judgment of the lower court.

Ryan James Moran v. State of Tennessee
W2006-00242-CCA-R3-HC
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge Joseph H. Walker, III

The Petitioner, Ryan James Moran, appeals the lower court’s denial of his petition for habeas corpus relief. The State has filed a motion requesting that this Court affirm the trial court pursuant to Rule 20, Rules of the Court of Criminal Appeals. The Petitioner has failed to allege any ground that would render the judgments of conviction void. Accordingly, we affirm the trial court’s dismissal.

Steven Ray Chance (Aryan Ray Garrett) v. David G. Mills v. State of Tennessee
W2006-00243-CCA-R3-HC
Authoring Judge: Judge J. C. McLin
Trial Court Judge: Judge Joseph H. Walker, III

The Petitioner, Steven Ray Chance, appeals the trial court’s denial of his petition for habeas corpus relief. The State has filed a motion requesting that this Court affirm the trial court pursuant to Rule 20, Rules of the Court of Criminal Appeals. The State’s motion is granted. The judgment of the trial court is affirmed.

Estate of Dennis McFerren v. Infinity Transport, LLC
W2004-02278-SC-WCM-CV
Authoring Judge: Special Judge Clayburn Peeples
Trial Court Judge: Chancellor Arnold Goldin

This workers’ compensation appeal has been referred to and heard by the Special Workers’ Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated section 50-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. We find that the trial court did not have jurisdiction over the defendant in the first lawsuit due to insufficient service of process pursuant to Tennessee Rule of Civil Procedure 4.03. The doctrine of prior suit pending does not apply, and the second lawsuit was not barred. The trial court erred in setting aside the default judgment against the defendant and dismissing the plaintiff’s complaint. Accordingly, we reverse the judgment of the trial court and remand the case to the trial court for reinstatement of the default judgment against the defendant.

Brooke Rathnow b/n/f Rich and Diane Rathnow v. Knox County, et al. - Concurring
E2005-02515-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Dale C. Workman

I agree completely with Judge Lee’s well-thought-out opinion. I write separately to emphasize what I believe is the linchpin of the reasoning in this case.

Brooke Rathnow b/n/f Rich and Diane Rathnow v. Knox County, et al
E2005-02515-COA-R3-CV
Authoring Judge: Judge Sharon G. Lee
Trial Court Judge: Judge Dale C. Workman

A high school student was injured when she fainted after viewing a first aid instructional video depicting simulated wounds that was being shown in one of her classes. The student, through her parents, sued Knox County and the Knox County Board of Education under the Tennessee Governmental Tort Liability Act, alleging that the teacher supervising the class was negligent in allowing her to leave the classroom unattended because it was foreseeable that she might be suffering a physical reaction to the video and that she might faint. The trial court entered judgment in favor of the plaintiff and awarded her damages in the amount of $30,000. The defendants appeal, arguing that plaintiff's fainting was not foreseeable and that, even if the trial court was correct in its finding of negligence, the trial court awarded excessive damages. Upon our determination that the harm suffered by the student was not reasonably foreseeable, we reverse the judgment of the trial court and dismiss this case.

Clifford Sims v. State of Tennessee
W2004-02167-CCA-R3-PC
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge John P. Colton, Jr.

The petitioner, Clifford Sims, appeals from the denial of his petition for post-conviction relief, arguing that his guilty pleas were unknowing and involuntary and that he was denied the effective assistance of counsel. Following our review, we affirm the denial of the petition.

Latreayl Mitchell v. Michael Green
W2005-01057-COA-R3-JV
Authoring Judge: Judge Alan E. Highers
Trial Court Judge: Judge George E. Blancett

In this appeal, we are asked to determine whether the juvenile court erred when it increased the amount of child support the father was required to pay the mother for their child born out of wedlock. The father originally filed a petition to modify child support seeking to decrease his child support obligation based on the fact that he had another child with another woman that currently resides with him. The juvenile court increased his child support obligation finding that he failed to visit his child after the mother moved to Knoxville, Tennessee, including certain periods of time when the mother brought the child to Memphis, Tennessee to visit the father. The father contends that it was error for the juvenile court to increase his child support obligation because the mother was in violation of the parental relocation statute, section 36-6-108 of the Tennessee Code, and that the father was prevented from visiting his child due to the distance and his medical condition. We affirm.

Terry L. Harris, et al. v. Jeffrey L. Stover and Nationwide Mutual Fire Insurance Company
W2005-02173-COA-R3-CV
Authoring Judge: Judge Alan E. Highers
Trial Court Judge: Judge Walter L. Evans

In this appeal, we are asked to determine whether the chancery court properly granted the plaintiffs’ motion for summary judgment. In this case, a lessor and his insurance company brought a direct action against a lessee and the lessee’s insurance company seeking a declaration of the parties’ rights under the lease agreement and reimbursement to the lessor’s insurance company for amounts paid to the lessor for damages to the rental property as a result of a fire while the lessee resided on the property. On appeal, the appellant argues that under the terms of the insurance policy maintained by the lessee, no obligation to pay the lessor or his insurance company arose as a matter of law. We reverse the decision of the chancery court and remand to the chancery court for the entry of an order granting summary judgment to the appellant.

Sandra David v. Saturn Corporation
M2004-02104-WC-R3-CV
Authoring Judge: Senior Judge William H. Inman
Trial Court Judge: Judge Stella L. Hargrove

This workers’ compensation appeal has been referred to the Special Workers’ Compensation
Appeals Panel of the Tennessee Supreme Court in accordance with Tennessee Code Annotated
section 50-6-225(e)(3) for hearing and reporting to the supreme court of findings of fact and
conclusions of law. Saturn’s employer-funded disability plan paid the Plaintiff disability benefits
after reaching maximum medical improvement when she was placed out of work because her
physician-ordered restrictions could not be accommodated. The Plaintiff claims error in the
offsetting of these disability payments. The judgment of the trial court is affirmed.

State of Tennessee v. Tamaine Works
W2005-01048-CCA-R3-CD
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge James C. Beasley, Jr.

This is a direct appeal from a conviction on a jury verdict of first degree premeditated murder. See Tenn. Code Ann. § 39-13-202. The Defendant was sentenced to life in prison. On appeal, the Defendant raises five issues: (1) the trial court erred in allowing the State to define premeditation for prospective jurors through the uses of examples during voir dire; (2) the trial court erred in excluding from evidence the victim’s alleged involvement in a prior homicide; (3) the trial court erred in allowing as evidence at trial the prior testimony from an unavailable witness; (4) the trial court erred by allowing the testimony of three of the State’s rebuttal witnesses; and (5) the evidence was insufficient to find him guilty beyond a reasonable doubt of the crime of first degree, premeditated murder.1 We affirm the judgment of the trial court.

Jeffrey Dean Bledsoe v. City of Dickson-Department of Police
M2005-00919-WC-R3-CV
Authoring Judge: Senior Judge William H. Inman
Trial Court Judge: Chancellor George C. Sexton

This workers’ compensation appeal has been referred to the Special Workers’ Compensation
Appeals Panel of the Tennessee Supreme Court in accordance with Tennessee Code Annotated
section 50-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and
conclusions of law. The Plaintiff, a thirty-seven year old police officer, suffers from mild
hypertension, readily controlled by medication. He claims that the stress of his job causes his
hypertension, and relies on the presumption created by Tennessee Code Annotated section
7-51-201(a)(1) to support this claim. The trial court held that this presumption was not rebutted and found that the Plaintiff retained a 3 percent anatomical disability owing to the hypertension. We find that the presumption was sufficiently rebutted, and that the evidence preponderates against a finding that the Employee’s hypertension arose out of his employment. Accordingly, the judgment of the trial court is reversed.

State of Tennessee v. Louis Leslie Myles
M2005-01671-CCA-R3-CD
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge Cheryl A. Blackburn

The Appellant, Louis Leslie Myles, appeals the denial of judicial diversion following his guilty pleas to two counts of theft of property over $1,000. After review of the record, we reverse the sentencing decision of the Davidson County Criminal Court and remand for deferment of the proceedings as provided by Tennessee Code Annotated section 40-35-313 (2003).

State of Tennessee, ex rel. Latonya Campbell v. Thomas Conley
W2005-01842-COA-R3-JV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Judge Robert W. Newell

The trial court granted Respondent Father a downward deviation from the child support guidelines when setting retroactive child support. We reverse.

In the Matter of M.A.W.
W2005-02095-COA-R3-PT
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Chancellor Arnold B. Goldin

In this termination of parental rights case, the juvenile court terminated the parental rights of T.H.W. (“Mother”) and all potential fathers. Mother appeals. We affirm.