Lanny Bernard v. Active USA, Inc.
M2002-00663-WC-R3-CV
Authoring Judge: Joe C. Loser, Jr., Sp. J.
Trial Court Judge: John H. Gasaway, III, 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. In this appeal, the employer questions the trial court's findings as to the extent of vocational disability. As discussed below, the panel has concluded the evidence fails to preponderate against the findings of the trial court. Tenn. Code Ann. _ 5-6-225(e) (22 Supp.) Appeal as of Right; Judgment of the Circuit Court Affirmed JOE C. LOSER, JR., SP. J., in which FRANK F. DROWOTA, III, C. J., and JOHN K. BYERS, SR. J., joined. Luther E. Cantrell, Jr., Nashville, Tennessee, for the appellant, Active USA, Inc. Andrew J. Blackwell, III, Madison, Tennessee, for the appellee, Lannie Bernard MEMORANDUM OPINION The employee or claimant, Mr. Bernard, initiated this civil action to recover workers' compensation benefits. Following a trial on November 26, 21, the trial court awarded, among other things, permanent partial disability benefits based on 45 percent to the right arm. The employer has appealed. Appellate review is de novo upon the record of the trial court, accompanied by a presumption of correctness of the findings of fact, unless the preponderance of the evidence is otherwise. Tenn. Code Ann. _ 5-6-225(e)(2) (22 Supp.). The reviewing court is required to conduct an independent examination of the record to determine where the preponderance of the evidence lies.

Ruth Louise Winchester v. John Doe Insurance Company,
M2002-00028-WC-R3-CV
Authoring Judge: Joe C. Loser, Jr., Sp. J.
Trial Court Judge: John J. Maddux, 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. In this appeal, the employer questions the trial court's findings as to permanency and extent of disability and insists "the trial court erred in its application of the concurrent injury rule." As discussed below, the panel has concluded the judgment should be affirmed. Tenn. Code Ann. _ 5-6-225(e) (22 Supp.) Appeal as of Right; Judgment of the Circuit Court Affirmed JOE C. LOSER, JR., SP. J., in which FRANK F. DROWOTA, III, C. J., and JOHN K. BYERS, SR. J., joined. B. Timothy Pirtle and Mary Little, McMinnville, Tennessee, for the appellants, John Doe Insurance Company and Findlay Industries/Gardner Manufacturing Division Barry H. Medley, McMinnville, Tennessee, for the appellee, Ruth Louise Winchester MEMORANDUM OPINION The employee or claimant, Ms. Winchester, initiated this civil action to recover workers' compensation benefits for injuries allegedly arising out of and in the course of her employment with the employer, Findlay Industries. The trial court awarded, among other things, permanent partial disability benefits based on 4 percent to the body as a whole and 15 percent to each hand. The employer has appealed. Appellate review is de novo upon the record of the trial court, accompanied bya presumption of correctness of the findings of fact, unless the preponderance of the evidence is otherwise. Tenn. Code Ann. _ 5-6-225(e)(2) (22 Supp.). The reviewing court is required to conduct an independent examination of the record to determine where the preponderance of the evidence lies.

State of Tennessee v. Scott Benn
E2001-01958-CCA-R3-CD
Authoring Judge: Presiding Judge Gary R Wade
Trial Court Judge: Judge Stephen M. Bevil

The defendant, Scott Benn, who was originally charged with felony murder and aggravated child abuse, was convicted of one count of aggravated child abuse. The trial court imposed a sentence of twenty-five years. In this appeal, the defendant asserts (1) that the trial court erred by failing to instruct the jury on the lesser included offenses of felony murder and aggravated child abuse; (2) that the trial court erred by admitting certain evidence; and (3) that the sentence is excessive. Although the trial court erred by failing to instruct on the lesser included offenses, the error can be classified as harmless beyond a reasonable doubt. The judgment is, therefore, affirmed.

Delivetrick Dewon Blocker v. State of Tennessee
E2002-00036-CCA-R3-PC
Authoring Judge: Presiding Judge Gary R Wade
Trial Court Judge: Judge Douglas A. Meyer

The petitioner, Delivetrick Dewon Blocker, appeals the denial of his petition for post-conviction relief. In this appeal, he contends that he was denied the effective assistance of counsel at trial. The judgment of the trial court is affirmed.

State of Tennessee v. Donald E. Bryant
E2002-00690-CCA-R3-CD
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge D. Kelly Thomas, Jr.

The Appellant, Donald E. Bryant, entered guilty pleas to the offenses of evading arrest, class D felony theft, misdemeanor theft, aggravated burglary, aggravated assault, and two violations of the Motor Vehicle Habitual Offender Act (MVHO). Under the terms of the plea agreement, Bryant received an effective twenty-year sentence as a range II multiple offender for these crimes. The plea agreement provided that the manner of service of the sentences would be submitted to the trial court. Following the sentencing hearing, the trial court ordered the sentences be served in the Department of Correction. On appeal, Bryant argues that the trial court erred in failing to grant him a sentence of community corrections. Finding this argument without merit, the judgment of the Blount County Circuit Court is affirmed.

State of Tennessee v. Charles David Long
M2002-01608-CCA-R3-CD
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge J. Curtis Smith

Upon his plea of guilty, the Defendant was convicted of operating a motor vehicle after having been ordered not to under the terms of the Motor Vehicle Habitual Offenders Act. For this Class E felony, the Defendant was sentenced as a Range II multiple offender to serve four years in the Department of Correction. In this appeal, the Defendant argues that the trial court erred by not allowing his sentence to be served in community corrections. We affirm the judgment of the trial court.

State of Tennessee v. Louis Turner
M2002-01000-CCA-R3-CD
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Judge Seth W. Norman

The defendant challenges the sufficiency of the evidence after being convicted by a Davidson County jury of premeditated first degree murder and sentenced to life imprisonment. We affirm the judgment of the trial court.

State of Tennessee v. Roger D. Harrison
M2002-00603-CCA-R3-CD
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge Timothy L. Easter

The Appellant, Roger D. Harrison, was convicted, following a bench trial, of DUI, second offense. On appeal, Harrison challenges his conviction upon grounds that: (1) the trial court erred by denying his motion to suppress evidence of driving under the influence because there was insufficient probable cause to stop his vehicle and his pre-arrest period of detention was excessive and unreasonable, and (2) the evidence was insufficient to support his conviction. Although not raised as an issue on appeal, we find it necessary to address the question of whether a federal law enforcement officer, when acting beyond his assigned federal duties and jurisdiction, may lawfully stop or seize a person who commits a state traffic offense in his presence. After review, we find the federal officer in this case had state authority to stop Harrison's vehicle. Moreover, finding Harrison's issues on appeal without merit, the judgment of the trial court is affirmed.

Janine Merryman v. Aqua Glass Corporation
W2001-02897-SC-WCM-CV
Authoring Judge: W. Michael William Michael Maloan, Special Judge
Trial Court Judge: Martha Brasfield, 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 of fact and conclusions of law. In this appeal, the defendant employer Aqua Glass Corporation contends the evidence preponderates against the trial court's finding of a compensable back injury and an award of twenty- six percent (26%) permanent partial disability to the body as a whole. For the reasons stated in this opinion, we affirm the judgment of the trial court. Tenn. Code Ann. _ 5-6-225(e) (21 Supp.) 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. Steven S. Maroney, Amber A. Edwards, Jackson, Tennessee, for appellant, Aqua Glass Corporation Scott G. Kirk, Jackson, Tennessee, for the appellee, Janine Merryman MEMORANDUM OPINION The plaintiff, Janine Merryman (Merryman) was forty-six (46) years old at trial. She graduated from high school and earned a Bachelor's Degree in Religious Arts and Theology. She has a commercial truck driver's license and a certificate for training in computer pattern making. Her prior work experience includes a waitress, waitress trainer, receptionist, dental surgical assistant, cashier, and pattern maker. Merryman began working for Aqua Glass in the production department as a roller and later as a sprayer. She testified she fell at work on November 18, 1996, and hurt her low back, left hip and knee. She felt a pop in her lower back and had a hot pain shoot down her left leg. After giving notice of the accident, she continued to work that day and did not miss any work thereafter. Merryman continued to have pain in her hip and leg and requested to see a doctor. She was referred to Dr. Micky Smith in Savannah, who referred her to Dr. Keith Nord in Jackson. Dr. Nord saw her on March 17, 1997 and took a history of an accident at work but no fall and complaints of hip and knee pain. His physical examination of her back and left leg did not disclose a ruptured disc or lateral meniscus tear in her knee. Dr. Nord diagnosed left hip greater trochanteriz bursitis and released her to work with no restrictions on March 31, 1997. Dr. Nord was of the opinion she had reached maximum medical improvement on February 4, 1998, and assigned no impairment to her back and a five percent (5%) permanent impairment to her left lower extremity. Prior to February 4, 1998, Dr. Nord testified Merryman did not complain of back pain. Merryman continued to see Dr. Nord for hip and knee pain. On her last visit of October 14, 1998, Dr. Nord's office notes state Merryman complained of back pain which Dr. Nord diagnosed as a lumbosacral strain. Merryman testified she told Dr. Nord of her back pain throughout her treatment. Merryman saw Dr. Claiborne Christian on September 29, 1999, for a second opinion. Dr. Christian took a history of a slip and fall at work with injuries to the low back and left extremity and complaints of continued back pain. An MRI did not reveal any abnormalities in her lumbar spine but an X-ray showed early degenerative changes at the L5-S1 level. On her last visit of December 16, 1999, Dr. Christian agreed with Dr. Nord and assigned five percent (5%) impairment for her knee injury and no impairment for her back. Dr.Christian did not find any evidence of spondylolisthesis in Merryman's back. When asked about Dr. Boals' finding of spondylolisthesis, Dr. Christian stated "It is just not consistent with my understanding of her injury which was a slip and fall at work and not a fall off a building or a high speed car accident." Dr. Joseph Boals evaluated Merryman on January 17, 21. Dr. Boals agreed Merryman had a five percent (5%) impairment to her left leg, but was of the opinion the fall at work had aggravated a pre-existing congenital spondylolisthesis at the L5-S1 level in her lower back and assigned a twenty-three percent (23%) permanent impairment to the body as a whole. Dr. Boals states in his notes: "For some reason, it seems the physicians missed this diagnosis (spondylolisthesis)." Dr. Boals assigned permanent restrictions of no prolonged walking, standing, stooping, climbing, repetitive bending or twisting of her back and stated he did not think Merryman could work as an over the road truck driver. Merryman testified she did not have any back problems prior to her fall at work in November 1996, but now has persistent pain in her low back, left hip and knee. She takes prescription pain medication as needed and she would be able to do her previous employment but with difficulty. Merryman left Aqua Glass in October 2 and began in May 21 working with her husband as an over the road truck driver with "one hundred percent (1%) no touch freight." She testified she can no longer ride her motorcycle, bowl, play tennis, or pick up her grandson. -2-

State of Tennessee v. Carlos Monte Waters and Laraiel J. Winton
E2001-00882-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Ray L. Jenkins
The defendants appeal their convictions for especially aggravated kidnapping and attempted aggravated robbery, as well as their twenty-five-year sentences. They claim there was insufficient evidence to support their convictions for kidnapping, the statutes upon which they were convicted are unconstitutional, they were denied a speedy trial, their trial counsel was ineffective, and their sentences are excessive. Winton contends that he had a plea agreement with the State and the prosecution committed prosecutorial misconduct by changing the terms of that agreement. After careful review, we affirm the judgments of the trial court.

Stanley Mills v. State of Tennessee
E2002-00262-CCA-R3-PC
Authoring Judge: Judge Joseph M. Tipton
Trial Court Judge: Judge Douglas A. Meyer

The petitioner, Stanley Mills, appeals the Hamilton County Criminal Court's denial of his petition for post-conviction relief from his conviction for second degree murder and resulting twenty-year sentence. He contends that he received the ineffective assistance of counsel because his trial attorney did not (1) prepare for trial adequately; (2) object to the trial court's erroneous jury instruction regarding his possible sentences; and (3) object to the trial court's amending his judgment of conviction to reflect that he was to serve one hundred percent of his sentence instead of thirty percent. We affirm the trial court's denial of the petition.

John David Rhoades, II, et al. v. Michael L. Taylor, et al.
M2001-00643-COA-R3-CV
Authoring Judge: Judge Patricia J. Cottrell
Trial Court Judge: Chancellor Tom E. Gray

This appeal involves a conflict between neighbors over whether the Taylors have a right to use a gravel driveway located on property owned by the Rhoades to access their property. The trial court found that an implied easement was proved. The Rhoades appeal that judgment to this court arguing that the Taylors failed to prove two elements necessary for a finding of an implied easement. We affirm the trial court's judgment.

Jerry T. Beech Concrete Contractor, Inc., v. Larry Powell Builders, Inc., et al.
M2001-02709-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Chancellor Ellen Hobbs Lyle

In this appeal from the trial court's award of attorneys fees, Appellant seeks review of the trial court's refusal to award the full amount of fees sought. We modify the trial court's findings and affirm as to the amount of the award.

In Re: T.L.R and A.W.R., the State of Tennessee, Department of Childrens Svcs v. Sandra Jane Riley
M2002-01101-COA-R3-JV
Authoring Judge: Judge Holly Kirby Lillard
Trial Court Judge: Judge Max D. Fagan

This case involves the termination of parental rights. The mother of the two young children at issue had a history of cocaine and marijuana abuse. In September 1999, the state department of children's services obtained custody of the children and placed them in a foster home. While the children were in foster care, the mother participated in drug rehabilitation programs and attempted to obtain permanent employment. The mother made some progress, but repeatedly relapsed back into drug and alcohol use, and failed to procure a permanent job or a permanent residence. In August 2001, the State filed a petition to terminate the mother's parental rights. The trial court granted the State's petition. The mother now appeals. We affirm, finding clear and convincing evidence that the mother had failed to comply with the permanency plan, that conditions that prevented the children's safe return still persisted, and that termination of the mother's parental rights is in the children's best interest.

American Indemnity Company, v. Iron City Lumber & Pallet, Inc., et al.
M2002-00650-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Judge Robert L. Holloway

This case involves an insurance company's appeal of the trial court's decision that the company has a duty to defend its insured under a commercial general liability policy. Applying Texas law, we find that no such duty exists and, accordingly, reverse the decision of the trial court.

William A. Dalton, et al. v. Gerald W. Dale, et al.
M2002-01205-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Judge Barbara N. Haynes

Defendant appeals adverse summary judgment as to diminution in value of a 1995 Jaguar XJ6 automobile based upon alleged undisputed expert testimony. Judgment is reversed, and the case is remanded.

Robert Pirtle v. Tennessee Board of Paroles, et al.
M1998-00454-COA-R3-CV
Authoring Judge: Judge William C. Koch, Jr.
Trial Court Judge: Chancellor Carol L. McCoy

This appeal involves a dispute between a prisoner and the Tennessee Board of Paroles regarding the revocation of his parole. After exhausting his administrative remedies, the prisoner filed a petition for common-law writ of certiorari in the Chancery Court for Davidson County asserting that he did not commit the crime that triggered the revocation of his parole. The trial court eventually dismissed the petition on the ground that it was not timely filed, and the prisoner has appealed. While his appeal was pending, the prisoner was released from the Department of Correction. Accordingly, because this appeal is now moot, we vacate the trial court's order and remand the case with directions to dismiss the prisoner's petition.

State of Tennessee v. Jared Michael Christein
E2001-01856-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Phyllis H. Miller

The appellant, Jared Michael Christein, was convicted by a jury in the Sullivan County Criminal Court of second degree murder, felony murder, and especially aggravated robbery. The appellant's second degree murder conviction was merged into his felony murder conviction and he was sentenced to life imprisonment in the Tennessee Department of Correction. The trial court also sentenced the appellant to twenty-five years incarceration for the especially aggravated robbery conviction. On appeal, the appellant raises the following issues for our review: whether sufficient evidence existed to support his convictions and whether the trial court properly charged the jury on the appropriate lesser-included offenses. Upon review of the record and the parties' briefs, we affirm the judgments of the trial court.

State of Tennessee v. Charles W. Wellman
E2001-03055-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge D. Kelly Thomas, Jr.

The defendant was convicted of assault, a Class A misdemeanor, in violation of Tennessee Code Annotated section 39-13-101 and sentenced to eleven months, twenty-nine days, with ninety days to be served in the county jail and the remainder on supervised probation. On appeal, in addition to challenging the sufficiency of the evidence, he argues that the trial court imposed an excessive sentence and erred by ordering that he serve ninety days in confinement. We conclude that the evidence is sufficient to support the conviction and the record supports the trial court’s sentencing determinations. Accordingly, we affirm the judgment of the trial court.

Conner Bros. Excavating Co., Inc. v. Long
E2001-01268-SC-WCM-CV
Authoring Judge: William M. Barker, J.
Trial Court Judge: Wheeler A. Rosenbalm, Judge
We granted this motion for a full court review of the Special Workers' Compensation Panel decision to determine whether the appellant, Clyde L. Long, proved by a preponderance of the evidence that his injury occurred as a result of a work-related incident as required in Tennessee Code Annotated section 50-6-103(a). After a careful review of the record, we hold that the evidence preponderates against the holding of the trial court and Special Workers' Compensation Panel, and that the appellant's injury did arise out of and within the scope of his employment. The judgment of the trial court and the Special Workers' Compensation Panel is reversed. Because the trial court made no other factual findings, the case is remanded to the trial court with instructions to make factual findings regarding: (1) the compensable medical benefits due to the appellant; (2) the temporary disability benefits to which Mr. Long is entitled, and; (3) the proper permanent disability award to which Mr. Long is entitled. Additionally, in the interest of expediting the payment of Mr. Long's medical expenses and the receipt of disability benefits, we direct the trial court to hold such hearing within sixty days of the date of this Court's order.

State of Tennessee v. Ronald Paul
M2002-00810-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge John H. Gasaway, III

The petitioner, Ronald Paul, appeals the Robertson County Criminal Court's disposition of his petition for post-conviction relief. The petition alleged ineffective assistance of trial and appellate counsel. The lower court ruled that, because appellate counsel's single issue raised on direct appeal was deemed waived by the appellate court, the petitioner would be entitled to a delayed appeal. The court also dismissed without prejudice the remaining allegations of ineffective assistance of counsel, indicating that the petitioner could file a new petition for post-conviction relief after the conclusion of the delayed direct appeal. Because we lack jurisdiction in this appeal, we dismiss the appeal.

State of Tennessee v. Donnie Thompson
M2002-01499-CCA-R3-CD
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Judge Jim T. Hamilton

A Maury County jury convicted the defendant, Donnie Thompson, of voluntary manslaughter and attempted voluntary manslaughter. The trial court sentenced him as a Range I standard offender to the maximum sentences of six years for voluntary manslaughter and four years for attempted voluntary manslaughter, with the sentences to run consecutively. On appeal, the defendant contends his sentences are excessive. We reduce the sentence for voluntary manslaughter to five years, affirm the four-year sentence for attempted voluntary manslaughter, and order the sentences to run concurrently.

Lindsay Taylor et al v. Al Beard et al
W2001-00347-SC-R11-CV
Authoring Judge: Justice E. Riley Anderson
Trial Court Judge: Judge Robert L. Childers

We granted review to determine whether Tennessee should adopt a cause of action allowing a child to recover for loss of parental consortium due to an injury to the child's parent. The trial court dismissed the claims for loss of parental consortium after finding that no such cause of action exists. The Court of Appeals affirmed. We hold that this Court should not adopt a common law cause of action for loss of parental consortium in personal injury cases and that the issue of whether to create such a cause of action is a matter of legislative discretion. We therefore affirm the Court of Appeals' judgment.

State of Tennessee v. Ricky Woods
W2002-00299-CCA-R3-CD
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Judge Roy B. Morgan, Jr.

A Madison County jury convicted the defendant, Ricky Woods, of aggravated burglary, theft of property valued over $500, and vandalism of property under $500. The trial court sentenced the defendant as a Range II multiple offender for the convictions for aggravated burglary and theft and imposed concurrent sentences of eight years for aggravated burglary, three years for theft, and eleven months and twenty-nine days for vandalism. On appeal, the defendant contends (1) the evidence was insufficient to support the convictions; and (2) the sentences are excessive. We affirm the judgments of the trial court.

Anthony McNabb, et al., v. Highways, Inc., et al.
E2001-00867-SC-R11-CV
Authoring Judge: Justice E. Riley Anderson
Trial Court Judge: Judge Lawrence H. Puckett

We granted this appeal to determine whether the trial court erred in granting summary judgment to the defendant based on the plaintiff’s failure to join all of the tortfeasors in a single proceeding under Samuelson v. McMurtry, 962 S.W.2d 473 (Tenn. 1998). The Court of Appeals reversed the trial court’s judgment after concluding that the plaintiff’s settlement with one tortfeasor did not require dismissal of the plaintiff’s complaint against a second tortfeasor. After reviewing the record and the applicable authority, we hold that the trial court erred in granting summary judgment to the defendant based on the plaintiff’s failure to join the tortfeasors in a single proceeding and that Samuelson is not applicable to the facts of this case. We therefore affirm the Court of Appeals’ judgment and remand to the trial court for further proceedings.