Conner Brothers Excavating Company v. Long
E2001-01268-SC-WCM-CV
Authoring Judge: Justice William M. Barker
Trial Court Judge: Judge Wheeler A. Rosenbalm

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.

Rick Kyle v. Earl Williams & Michelle Williams
E2002-00091-SC-R09-CV
Authoring Judge: Chancellor Jerri S. Bryant
Trial Court Judge: Chief Justice Frank F. Drowota, III,

We granted the plaintiff's application for permission to appeal to determine whether the Chancellor erred in holding that a contractor is unlicensed for purposes of Tennessee Code Annotated section 62-6-103(b), and therefore is limited to a recovery of documented expenses proven by clear and convincing evidence, where the contractor possessed a valid contractor's license when the contract was formed but did not maintain a valid license throughout the entire time contracting services were performed under the contract. After carefully considering the relevant statutes, we conclude that the Chancellor properly held that a contractor who does not maintain a valid license throughout the entire contract period is unlicensed for purposes of Tennessee Code Annotated section 62-6-103(b) and limited to a recovery of documented expenses proven by clear and convincing evidence.

State of Tennessee v. Jerry Wayne Pointer
M2001-02269-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Cheryl A. Blackburn

The defendant, Jerry Wayne Pointer, was convicted of first degree premeditated murder and sentenced as a violent offender to life imprisonment without parole. On appeal, he contends that the trial court erred in denying his motions to suppress evidence seized from his person and his home, in ruling that his prior convictions were admissible for impeachment purposes, in allowing testimony of a prior violent incident between him and the victim, and, additionally, that the evidence at trial was insufficient to support his conviction for first degree premeditated murder. Following our review, we affirm the judgment of the trial court.

Tony S. Walker v. State of Tennessee
W2001-02921-CCA-R3-PC
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge L. Terry Lafferty

The petitioner appeals the denial of his petition for post-conviction relief from his conviction for first degree felony murder, for which he was sentenced to life imprisonment. He argues that: (1) he received ineffective assistance of counsel; and (2) the post-conviction court erred in finding that his statement taken by law enforcement officers did not violate his constitutional rights. Following our review, we affirm the post-conviction court's denial of the petition.

State of Tennessee v. Tommy William Davis
E2002-00511-CCA-R3-CD
Authoring Judge: Judge J. Curwood Witt, Jr.
Trial Court Judge: Judge Ben W. Hooper, II

The defendant, Tommy William Davis, was convicted of Class D theft of property over $1,000 and was sentenced to a term of six years incarceration, as a Range II offender. On appeal, he argues that the trial court should have granted a judgment of acquittal at the close of the state’s proof, and he challenges the length of his sentence as premised on an invalid enhancement factor. Our review convinces us that the evidence was sufficient to support his conviction and that, although improper enhancement factors were applied, a sentence of six years is appropriate.

State of Tennessee v. Tommy William Davis - Concurring
E2002-00511-CCA-R3-CD
Authoring Judge: Judge Jerry L. Smith
Trial Court Judge: Judge Ben W. Hooper, II

While I concur with the majority that the evidence is sufficient to support the conviction for theft of property over $1,000, I reach that result from a somewhat different approach than that taken in the principal opinion. The majority concludes that the defendant’s presence in and operation of a borrowed vehicle is sufficient proof to support a finding of constructive possession of contraband contained therein. Concededly, this has been the conclusion reached by this Court in a number of its decisions. See, e.g., State v. Gonzalo Moran Garcia, No. M2000-01760-CCA-R3-CD, 2002 Tenn. Crim. App. LEXIS 146, at *111 (Tenn. Crim. App. Nashville, Feb. 20, 2002); State v. Brown, 915 S.W.2d 3, 7-8 (Tenn. Crim. App. 1995). However, having re-read the opinion of the Tennessee Supreme Court in State v. Shaw, 37 S.W.3d 900 (Tenn. 2001), I am convinced that mere presence in and operation of a vehicle containing contraband is, without other proof of a power or intention on the part of the defendant to exercise dominion and control over the contraband, insufficient to establish “constructive possession.” Nevertheless, I believe that the record of the instant case provides sufficient other proof that, when coupled with the proof of the defendant’s presence in and operation of the vehicle containing contraband, establishes the constructive possession necessary in this case to sustain a theft conviction.

State of Tennessee v. Donald P. Wilcox
E2002-01229-CCA-R3-CD
Authoring Judge: Judge Joseph M. Tipton
Trial Court Judge: Judge R. Jerry Beck

The defendant, Donald P. Wilcox, appeals the Sullivan County Criminal Court's denial of his request for probation for his guilty pleas to violating a habitual traffic offender order, a Class E felony; violating the registration law, a Class C misdemeanor; and possession of alprazolam pills, marijuana, and drug paraphernalia, Class A misdemeanors. We affirm the decision of the trial court.

Michelle Devers v. Aqua Glass Corporation,
W2001-02832-SC-WCM-CV
Authoring Judge: Joe C. Loser, Jr., Sp. J.
Trial Court Judge: Martha B. 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. _ 5-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. In this appeal, the employer insists "the trial court erred in finding that the plaintiff had sustained a compensable injury under the Workers' Compensation Act and, as a result thereof, suffered an 18 percent permanent partial disability to each arm." As discussed below, the panel has concluded the judgment should be affirmed. Tenn. Code Ann. _ 5-6-225(e) (21 Supp.) Appeal as of Right; Judgment of the Chancery Court Affirmed JOE C. LOSER, JR., SP. J., in which JANICE M. HOLDER, J., and W. MICHAEL MALOAN, SP. J., joined. Steven Maroney, J. Arthur Crews and Jay Dustin King, Jackson, Tennessee, for the appellant, Aqua Glass Corporation Edward L. Martindale, Jr., Jackson, Tennessee, for the appellee, Michelle Devers MEMORANDUM OPINION This civil action was initiated by the employee or claimant, Michelle Devers, to recover workers' compensation benefits for gradually occurring work related injuries to her hands and arms. The employer answered by asserting that the claimant failed to give timely written notice of her injuries and denying every allegation of the complaint. After a trial on the merits, the trial court awarded her, among other things, benefits based on 18 percent permanent partial disability to both arms. The employer has appealed, contending the preponderance of the evidence is otherwise. 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) (21 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. Christopher K. Knight
W2001-02995-CCA-R3-CD
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Judge C. Creed Mcginley

A Hardin County jury convicted the defendant of two counts of aggravated assault. On appeal, he contends: (1) the trial court erred by refusing to grant a mistrial during jury voir dire; (2) the trial court erred in denying the defendant's motion for new trial based on alleged juror misconduct; and (3) the evidence was not sufficient to support his convictions. We affirm the judgments of the trial court.

Rebecca McMurry v. Metro Government of Nashville
M2000-02902-COA-R3-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: Hamilton V. Gayden, Jr.
This appeal is brought by an employee of the Metropolitan Government of Nashville and Davidson County who slipped and fell while working and, as a result, injured her knee. The employee brought suit pursuant to the Tennessee Governmental Tort Liability Act to recover damages for her lost earning capacity, pain and suffering, and expenses. Prior to this suit, Metro paid the employee's medical expenses and compensated her for the work that she missed during her recovery. The trial judge awarded the employee $24,000, finding that Metro was at fault, but that the employee's injury was merely the exacerbation of a previous knee injury. The trial court also awarded the employee $2,858.30 in discretionary costs, but disallowed a $900 charge for the trial preparation fee of the employee's expert. The employee appeals the trial court's final order. We affirm the trial court in all respects.

Ray Dunnagan v. Foamex
W2001-03076-SC-WCM-CV
Authoring Judge: Joe C. Loser, Jr., Sp. J.
Trial Court Judge: Joe C. Morris, 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. In this appeal, the employer insists (1) the action is time barred, (2) the evidence preponderates against the trial court's finding that the employee's restrictive lung disease was caused by exposure to silica at work and (3) the award of permanent partial disability based on 65 percent to the body as a whole is excessive. As discussed below, the panel has concluded the judgment should be affirmed. Tenn. Code Ann. _ 5-6-225(e) (21 Supp.) Appeal as of Right; Judgment of the Chancery Court Affirmed JOE C. LOSER, JR., SP. J., in which JANICE M. HOLDER, J., and W. MICHAEL MALOAN, SP. J., joined. Joseph M. Crout, Memphis, Tennessee, for the appellant, Foamex Ricky L. Boren, Jackson, Tennessee, for the appellee, Ray Dunnagan MEMORANDUM OPINION The employee or claimant, Ray Dunnagan, initiated this civil action on April 5, 21 to recover workers' compensation benefits for an alleged occupational disease resulting from exposure to chemicals at work. By its answer, the employer denied liability. After a trial on the merits, the trial court resolved the issues in favor of the employee, awarding, among other things, permanent partial disability benefits based on 65 percent to the body as a whole. 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) (21 Supp.). The reviewing court is required to conduct an independent examination of the record to determine where the preponderance of the evidence lies.

Deborah Griffin v. Ace USA
W2002-01433-WC-R3-CV
Authoring Judge: John K. Byers, Sr. J.
Trial Court Judge: Joe C. Morris, 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 found the plaintiff had sustained a 4 percent permanent partial impairment to her body as a whole as a result of an injury to her left arm,1 which aggravated a previous impairment to her right arm. The employer appeals the trial court's judgment. The employer contends that the plaintiff's injury was to a scheduled member, not to the body as a whole, and that the evidence did not preponderate in favor of the amount of the trial court's award. We conclude that the plaintiff may recover only for the injury to her left arm, a scheduled member, and we modify the plaintiff's award to 5 percent permanent partial disability to the left arm. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Chancery Court Affirmed as Modified and Remanded JOHN K. BYERS, SR. J., in which JANICE M. HOLDER, J. and JOE C. LOSER, SP. J., joined. P. Allen Phillips, Jackson, Tennessee, for the appellant, Ace USA. Jack Manhein, Jr., Jackson, Tennessee, for the appellee, Deborah Griffin. MEMORANDUM OPINION At the time of trial, the plaintiff, who is married and is the mother of a child, was forty years of age. She has a twelfth-grade education. The plaintiff's work history is, for the most part, that of 1 The trial judge and the testifying physicians refer to the plaintiff's injuries as being to the "upper extremities." However, the Workers' Compensation Act refers to "arms." a food service worker. In 1991, the plaintiff's right arm was broken in an automobile accident. The accident was not job-related. As a result of that injury, the plaintiff has a metal plate in her right arm. On March 22, 2, the plaintiff received a work-related injury to her left ring finger, resulting in amputation of the finger, for which she received compensation based upon a 25 percent loss of use of her left arm. On March 14, 21, while working as a crust stacker for the defendant, the plaintiff's left arm was caught by mechanical flippers on a production line. Her radius and ulnar bones were severely fractured. The plaintiff testified that as a result of the left arm injury she is unable to bend her wrist, that she cannot perform household chores because of the loss of grip, that her left arm is weaker, and that she has pain in her left arm. She further testified that as a result of the injury to her left arm she has to use her right arm more often, which has caused her right shoulder to hurt. The physician who was treating the plaintiff's arm fracture released her to return to work on July 1, 21, without any restrictions. However, the plaintiff was still under restrictions as a result of the March 2 injury. The plaintiff was doing a light-duty job at the time of trial. On July 21, 21, the plaintiff submitted a resignation letter to Aurora Foods, Inc. The plaintiff reported to Aurora that she resigned because she was having pain in both of her arms due to the two accidents she had while working at Aurora. The trial court found that the plaintiff's injury to her left arm aggravated and exacerbated the prior injury to her right arm, resulting in a 4 percent permanent partial disability to the body as a whole. Medical Evidence Dr. W. Randolph Fly, an orthopedic surgeon, saw the plaintiff immediately after the left arm injury2 and performed surgery that consisted of opening the arm and placing plates on the broken bones. Dr. Fly continued to see the plaintiff over a period of several weeks and testified that she progressed normally in the healing process, which included pain and weakness in her arm during the time of treatment. Dr. Fly stated on May 8, 21, that the plaintiff could return to work with restrictions of no lifting over 5 to 1 pounds, no fine manipulation with her left hand, and limited hours of work. On July 1, 21, Dr. Fly found that she had reached maximum medical improvement. He fixed no restrictions on her as a result of the injury to her left arm. He testified the previous restrictions for the injury to her fingers were still in effect. Dr. Fly testified he only 2 Dr. Fly's notes on the date of the plaintiff's injury indicate that the plaintiff reported pain in her left shoulder. Th ere wa s no furth er me ntion o f left should er pa in by D r. Fly. -2-

Darrell Lamar Fritts v. State of Tennessee
M2001-03126-CCA-R3-CO
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Seth W. Norman

The petitioner, Darrell Lamar Fritts, filed in the Davidson County Criminal Court a petition for habeas corpus relief, alleging that the plea bargain process employed by the State of Tennessee is unconstitutional per se, thus rendering two of his convictions, which resulted from guilty pleas, void. The trial court denied the petition and the petitioner timely appealed. Upon review of the record and the parties' briefs, we affirm the judgment of the trial court.

State of Tennessee v. Terry Wayne Luna
M2001-02752-CCA-R3-CD
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge Charles D. Haston, Sr.

The Defendant, Terry Wayne Luna, was convicted by a jury of aggravated sexual battery. He was sentenced to twenty years in the Department of Correction. In this direct appeal, he argues that the trial court erred in overruling his motion for a mistrial because the Defendant was unduly prejudiced by a non-responsive answer to a question asked by defense counsel on cross-examination. We affirm the judgment of the trial court.

Michael Harrington v. Grant Smith
M2002-00840-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Carol L. Mccoy
Defendant appeals a grant of summary judgment against him on a promissory note and an additional judgment against him for breach of contract. We affirm the action of the trial court.

State of Tennessee v. Kevin Martin
M2002-01496-CCA-R3-CD
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge Donald P. Harris

The Defendant, Kevin Martin, pled guilty to one count of obtaining prescription drugs by fraud, one count of possession of drug paraphernalia, two counts of forgery, one count of telephone harassment, one count of reckless endangerment, and one count of assault. The negotiated plea agreement resulted in an effective sentence of five years and six months. Pursuant to the agreement, service of two of the years was suspended, and the manner of service for the remaining three and one-half years was to be determined by the trial court. Following a sentencing hearing, the trial court ordered the Defendant to serve the sentences totaling three and one-half years in confinement. It is from this order that the Defendant now appeals as of right. We affirm the judgment of the trial court.

State of Tennessee v. Wilmore Hatfield
M2002-00939-CCA-R3-CD
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge Eric Shayne Sexton

The Appellant, Wilmore Hatfield, was indicted for attempted first degree murder, aggravated assault, felony possession of a weapon, and driving under the influence (DUI). Following a jury trial, Hatfield was found guilty of felony reckless endangerment, as a lesser-included offense of aggravated assault, and DUI. He was sentenced to concurrent sentences of two years for the felony reckless endangerment conviction and eleven months, twenty-nine days for the DUI conviction. On appeal, Hatfield raises the following issues for our review: (1) whether felony reckless endangerment is a lesser-included offense of aggravated assault as charged in the indictment; (2) whether the trial court's DUI instruction was proper; (3) whether the evidence was sufficient to support the verdicts; and (4) whether his sentences were excessive. We hold that felony reckless endangerment is not a lesser-included offense of aggravated assault committed by intentionally or knowingly causing bodily injury to another by use or display of a deadly weapon. Therefore, the felony reckless endangerment conviction must be reversed and remanded for a new trial on the lesser charge of misdemeanor assault. Regarding Hatfield's DUI conviction, we conclude that the trial court properly charged the jury and the evidence was sufficient to support the verdict. However, we find that the trial court erred by ordering Hatfield to serve his entire eleven-month and twenty-nine-day sentence in the county jail. Accordingly, his DUI conviction is affirmed; however, his sentence is modified to reflect a sentence of eleven months and twenty-nine days, with all time suspended except forty-eight hours to be served in the county jail.

State of Tennessee v. Billy Joe Porterfield
M2002-00405-CCA-R3-CD
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge Michael R. Jones

The Appellant, Billy Joe Porterfield, was convicted by a Montgomery County jury of aggravated burglary, especially aggravated kidnaping, especially aggravated robbery, attempted first degree murder, and two counts of aggravated rape, all arising from a single criminal episode. As a result of these convictions, Porterfield received an effective sentence of one-hundred-fifteen years imprisonment. On appeal, Porterfield argues: (1) the evidence is insufficient to support his convictions, and (2) the trial court erred in its application of enhancement factors in determining the appropriate sentences. Finding no merit to these issues, the judgment of the trial court is affirmed.

State of Tennessee v. Renne Efren Arellano
M2002-00380-CCA-R3-CD
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge Robert L. Jones

The Appellant, Renne Efren Arellano, was indicted by a Maury County grand jury for one count of aggravated arson, a class A felony, eight counts of attempted first degree murder, class A felonies, and one count of felony possession of a weapon, a class E felony. A negotiated plea agreement allowed the Appellant to plead to one count of arson, eight counts of aggravated assault, and one count of felony possession of a weapon in exchange for an effective twelve-year sentence. The manner of service of the twelve-year sentence was to be determined by the trial court. Following a sentencing hearing, the trial court ordered that the twelve-year sentence be served in the Department of Correction. On appeal, Arellano contends that the trial court erred in not sentencing him to any form of alternative incarceration. However, plain error dictates that the convictions be vacated and the case remanded for further proceedings because aggravated assault is not a lesser included offense of attempted first degree murder.

Thomas Dougherty v. Joyce Parry
M2002-00757-COA-R3-CV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: C. L. Rogers
A divorced father petitioned the court to transfer custody of his two children from his former wife to himself. The trial court dismissed the petition, finding that the father had not met the threshold requirement for change of custody by proving a material change of circumstances. We find that there has been such a change of circumstances, and we remand this case to the trial court with instructions to determine the best interest of the children.

State of Tennessee v. Bobby Earl Ferrell, Jr.
M2002-01295-CCA-R3-CD
Authoring Judge: Judge Joseph M. Tipton
Trial Court Judge: Judge Lee Russell

The defendant, Bobby Earl Ferrell, Jr., appeals as of right the sentences imposed by the Bedford County Circuit Court following the defendant's guilty pleas to aggravated burglary, a Class C felony, and theft of property valued between $1,000 and $10,000, a Class D felony. He contends that the trial court should not have ordered him to serve his effective four-year sentence consecutively to a prior Rutherford County sentence. We affirm the sentences imposed by the trial court.

Smith County v. Dave Enoch
M1999-00063-COA-R3-CV
Authoring Judge: Judge William C. Koch, Jr.
Trial Court Judge: Charles K. Smith
Smith County filed this action to enjoin the maintenance of an automobile junkyard within one thousand (1,000) feet of a county road pursuant to the authority of Private Acts. The defendant admitted his violation of the Private Acts, but pleaded (1) the asserted lack of standing of the County to file the action, and (2) the asserted unconstitutionality of the Acts. The Chancellor sustained both defenses. We reverse.

Paul Rector v. Elizabeth Halliburton
M1999-02802-COA-R3-CV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: Hamilton V. Gayden, Jr.
The residence owned by Mrs. Halliburton had no access owing to highway construction. She acquired a driveway easement from the adjoining landowner, who later sold the property to Mr. Rector. An electric service line extended across the front of Mr. Rector's property which was relocated. Mr. Rector's efforts to purchase the Halliburton property were unavailing, and he began a policy of harassment presumably to acquire the property. He claimed, inter alia, that the easement terminated because it was improperly maintained, and that NES moved the service line without his permission and hence was guilty of trespass. Mrs. Halliburton filed a counterclaim for damages, charging Mr. Rector with trespass and outrageous conduct. Mr. Rector's suit was dismissed, and the counterclaim of Mrs. Halliburton was sustained. The dismissal of Mr. Rector's suit is affirmed; the award of attorney fees to Mrs. Halliburton is reversed; the case is remanded for a determination of the damages sustained by Mrs. Halliburton, including punitive damages.

State of Tennessee v. Daryl Adrian Benjamin Ingram
W2002-00936-CCA-R3-CD
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Judge Donald H. Allen

The defendant entered "open" guilty pleas to eight counts of aggravated robbery and two counts of attempted aggravated robbery. The trial court imposed an effective forty-year sentence. On appeal, the defendant argues: (1) his sentences are excessive; and (2) the trial court erred in imposing partial consecutive sentencing. We affirm the judgments of the trial court.

State of Tennessee v. Jesse Wayne Baker
W2002-00692-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge C. Creed Mcginley

The defendant, Jesse Wayne Baker, pled guilty to introduction of a controlled substance into a penal institution, a Class C felony. The trial court sentenced the defendant to four years to be served consecutively with a previous sentence. On appeal, the defendant argues that his sentence is excessive and the trial court erred in denying alternative sentencing and in imposing consecutive sentencing. Based upon our review, we affirm the judgment of the trial court.