Alica Rakestraw vs. Gregory Rakestraw E2002-01151-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: Jerri S. Bryant
The sole issue in this divorce case is whether the Trial Court reached the correct decision regarding custody of the parties' child. The Court granted primary custodial care of the parties' daughter, Kendra Paige Rakestraw, then 10 years old, to Gregory Keith Rakestraw ("Father"). Alica Delane Rakestraw ("Mother") argues on appeal that the evidence preponderates against the Court's exercise of discretion in rendering its custody decision, and that the Court erred in denying her motion to alter or amend the judgment and her motion for a new trial. We affirm the judgment of the Trial Court in all respects.
Defendant, George William King, has appealed the sentence imposed upon him by the trial court after he pled guilty to one count of statutory rape. We affirm the judgment of the trial court.
The defendant, William Jerry Neal, also known as William Jay Neal, appeals his jury convictions for especially aggravated burglary, a Class B felony, and vandalism under $500, a Class A misdemeanor, resulting in concurrent sentences of eleven years, three months and eleven months, twenty-nine days, respectively. On appeal, the defendant argues: (1) the evidence was insufficient to establish serious bodily injury, as required for a conviction for especially aggravated burglary; and (2) the trial court erred by failing to grant a new trial after learning that one of the jurors had once been incarcerated with the defendant. We affirm the judgment of the trial court.
Venita Michelle Burchell appeals from her aggravated child abuse and criminally negligent homicide convictions. Her convictions result from a jury trial in the Davidson County Criminal Court pertaining to fatal injuries inflicted upon Nicholas Boyd Cotton, who was sixteen months old at the time of his death. Ms. Burchell urges us to find error in the lower court's acceptance of the verdict, the admission of prior bad act evidence, and the limiting of defense expert testimony. Because no harmful error occurred, we affirm.
Davidson
Court of Criminal Appeals
Lon S. Walker v. State of Tennessee M2001-01090-CCA-R3-PC
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Leon C. Burns, Jr.
Petitioner, Lon Walker, filed a petition for post-conviction relief from his conviction for second degree murder, alleging that he was denied effective assistance of counsel. Following an evidentiary hearing, the post-conviction court denied relief. In his appeal to this court, Petitioner raises the issue of whether the trial court erred in finding that Petitioner received effective assistance of counsel at trial. After a careful review, we affirm the judgment of the post-conviction court.
Putnam
Court of Criminal Appeals
State of Tennessee v. Kenneth R. Laws E2001-00375-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Robert E. Cupp
The Defendant was charged with aggravated child abuse, a Class A felony. Pursuant to a plea agreement, the Defendant entered a "best interest" plea to abuse of a child under six years of age, a Class D felony, and the trial court sentenced the Defendant to a three-year term with the manner of service of the sentence to be determined following a sentencing hearing. Following a hearing, the trial court ordered the Defendant to serve the three-year sentence in the Tennessee Department of Correction. The Defendant now appeals, arguing that the trial court abused its discretion in denying judicial diversion and erred in denying alternative sentencing. We conclude that the record supports the trial court's denial of judicial diversion and alternative sentencing. Therefore, we affirm the judgment of the trial court.
Washington
Court of Criminal Appeals
State of Tennessee v. John Briggs E2001-01933-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge R. Jerry Beck
The appellant, John Briggs, a pharmacist, pled guilty in the Sullivan County Criminal Court to sixteen counts of unlawfully dispensing a controlled substance. The trial court sentenced the appellant to a total effective sentence of twenty years incarceration in the Tennessee Department of Correction, with all but eight years to be served on probation. On appeal, the appellant argues that the trial court erred in denying full probation. Upon review of the record and the parties' briefs, we affirm the judgment of the trial court.
Sullivan
Court of Criminal Appeals
The Rogers Group vs. Anderson County E2002-00409-COA-R9-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Telford E. Forgerty, Jr.
After case was tried, the Trial Judge recused and another Judge was designated who granted a new trial on all issues. On appeal, we affirm.
The petitioner appeals the denial of his post-conviction relief petition, arguing his trial counsel was ineffective for failing to locate an alibi witness for his aggravated burglary trial. We affirm the judgment of the post-conviction court, which found trial counsel made reasonable efforts to locate the potential witness, and the petitioner was not prejudiced by the inability to present the witness's testimony at trial.
James Thompson vs. Knoxville Teachers Federal Credit Union E2002-00780-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Daryl R. Fansler
James L. Thompson ("Plaintiff") was the principal stockholder, director, and officer of People Personnel Industrial Corporation. Plaintiff began kiting checks when the corporation started having financial difficulties. Plaintiff's actions resulted in a substantial monetary loss to Knoxville Teachers Federal Credit Union ("Credit Union"). After both the corporation and Plaintiff filed for bankruptcy, the parties entered into an agreement whereby the Credit Union agreed not to pursue or assist any other party in pursuing a cause of action against Plaintiff based on the check kiting. Thereafter, Plaintiff was prosecuted in federal court. The Credit Union supplied information to the United States Government pertaining to the amount of its financial losses. After Plaintiff pled guilty in federal court to defrauding the Credit Union, he was ordered to serve a small amount of time in prison and pay restitution of $74,417.29 to the Credit Union. Plaintiff brought this lawsuit claiming the Credit Union pursued the order of restitution in the criminal proceeding and thereby violated the terms of the settlement agreement. The Trial Court granted summary judgment to Defendants, and Plaintiff appeals. We affirm.
Knox
Court of Appeals
Connie Lee Arnold v. State of Tennessee E2001-02526-CCA-R3-PC
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Robert E. Cupp
The petitioner was convicted of child rape and especially aggravated exploitation of a minor and sentenced to consecutive sentences of twenty-five years and twelve years, respectively. Following the affirmance of his convictions and sentences on direct appeal, he filed a pro se petition for post-conviction relief. Concluding that the claims consisted of conclusory allegations without necessary supporting facts, the post-conviction court dismissed the petition without affording the petitioner the opportunity to amend the petition. The petitioner timely appealed. Following our review, we affirm the dismissal of the petition.
A Sullivan County Criminal Court jury convicted the defendant, Howard Duty, Jr., of stalking, a Class A misdemeanor, and the trial court sentenced him to eleven months, twenty-nine days at seventy-five percent and imposed a one thousand dollar fine. The defendant appeals, claiming (1) that the evidence is insufficient to support his conviction, (2) that his sentence is excessive, and (3) that he should have received an alternative sentence. We affirm the judgment of the trial court.
Sullivan
Court of Criminal Appeals
Troy Buckles vs. Shira Riggs E2002-00649-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Thomas R. Frierson, II
Shira Dawn McKay Buckles Riggs ("Mother") and Troy Dale Buckles ("Father") were divorced in 1994. Mother was awarded custody of the parties' minor son. In 2001, Father first sought increased visitation and then custody. Mother claimed Father was in arrears in his child support payments. After a trial, the trial court concluded there had been no material change in circumstances and custody should, therefore, remain with Mother. The trial court determined Father was in arrears in his child support payments in the amount of $13,894. The trial court also prohibited both parties from drinking alcohol "while in possession of the child." Father appeals. We modify the judgment to require the parties to undergo counseling, and affirm as modified.
Hawkins
Court of Appeals
Marisa Lovin vs. Charles Nave E2002-00686-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Ben W. Hooper, II
Marisa R. Lovin ("Plaintiff") was involved in a one car accident on her way home from Dr. Charles E. Nave's ("Defendant") dental office. Although Plaintiff has no memory of the accident itself, she claims she suffered an adverse reaction to an anesthetic agent administered by Defendant, which caused the car accident. Plaintiff sued Defendant for dental malpractice claiming Defendant failed to warn her about potential side effects of the anesthesia and did not properly manage her treatment after administering the anesthetic agent. The Trial Court granted Defendant summary judgment. Plaintiff appeals. We affirm.
Sevier
Court of Appeals
Kanta Keith, et al vs. Gene Ervin Howerton, et al E2002-00704-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Dale C. Workman
This case is on appeal for the second time. In the first appeal, we held that the defendants violated the Tennessee Consumer Protection Act ("the Act") in certain pawn transactions with the plaintiffs. We remanded the case to the trial court for a determination of whether the plaintiffs were entitled to treble damages and attorney's fees under the Act. Following a bench trial on these issues, the court below determined that the plaintiffs were not entitled to treble damages, but that they were entitled to a slight augmentation of their compensatory awards. In addition, the trial court awarded attorney's fees and costs, in amounts which are substantially less than those claimed by counsel. The plaintiffs appeal, arguing that the trial court erred in refusing to award treble damages and in its award of fees and costs. By way of a separate issue, the defendants argue that the trial court erred in granting a declaratory judgment to the plaintiff, Kanta Keith ("Mr. Keith"), following the death of his wife, the plaintiff, Darlene Keith ("Mrs. Keith"). We affirm in part, vacate in part and remand.
Knox
Court of Appeals
Connie Lee Arnold v. State of Tennessee - Dissenting E2001-02526-CCA-R3-PC
Authoring Judge: Judge Joseph M. Tipton
Trial Court Judge: Judge Robert E. Cupp
I respectfully dissent. I believe the pro se petition sufficiently complies with the 1995 Post-Conviction Procedure Act and states a colorable claim for relief.
The petitioner, Shaun Lamont Hereford, appeals the Hamilton County Criminal Court's dismissal of his petition for post-conviction relief, in which he alleged void convictions, misrepresentation by his trial attorney, and that he was entitled to DNA analysis of physical evidence. Discerning no error in the trial court's dismissal of the petition without an evidentiary hearing, we affirm.
Hamilton
Court of Criminal Appeals
George Thomas Argo v. Brentwood Services M2001-02821-WC-R3-CV
Authoring Judge: Joe C. Loser, Jr., Sp. J.
Trial Court Judge: Charles D. Haston, 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 insists (1) the trial court erred in failing to dismiss the claim based on the "last injurious injury doctrine," (2) the award of permanent partial disability benefits based on 37.5 percent to the body as a whole is excessive, and (3) the trial court erred in commuting the award to a lump sum. The employee insists he is entitled to receive benefits from one insurer or the other. 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 Circuit Court Affirmed JOE C. LOSER, JR., SP. J., in which JANICE M. HOLDER, J., and JAMES L. WEATHERFORD, SR. J., joined. Stacey Billingsley Cason, Nashville, Tennessee, for the appellant, Local Government Workers' Compensation Fund Barry H. Medley, McMinnville, Tennessee, for the appellee, George Thomas Argo MEMORANDUM OPINION The employee or claimant, Argo, initiated this civil action to recover workers' compensation benefits for an alleged work related injury occurring on June 2, 1999, while he was working for the employer, Warren County Sanitation Department.1 2 The cause was dismissed as to Warren County's workers' compensation administrator, Brentwood Services Administrators, Inc. Local Government Workers' Compensation Fund, Warren County's insurer in June 1999, was added as a third party defendant. Local Government Workers' Compensation Fund contended the accident occurred after its coverage lapsed on July 1, 1999. On that issue, summary judgment was issued in favor of Warren County, there being undisputed proof that the accident happened in June, before coverage lapsed. The propriety of that order is not directly questioned in this appeal. After a trial of the remaining issues on October 22, 21, the trial court, finding the injury to have occurred on June 2, 1999, as alleged, awarded, among other things, permanent partial disability benefits based on 37.5 percent to the body as a whole. Local Government Workers' Compensation Fund has appealed. For injuries occurring on or after July 1, 1985, 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.
Warren
Workers Compensation Panel
Cathy Judkins v. Findlay Industries/Gardner M2001-02560-WC-R3-CV
Authoring Judge: William H. Inman, Sr. J.
Trial Court Judge: Charles D. Haston, 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. This complaint was non-specific as to the occurrence of a job-related accident and any compensable injuries. The essential thrust of the appeal by the employer is directed to the issue of whether the purported failure of the employee to reveal pre-existing medical conditions to an independent medical examiner nullifies his testimony. 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 ADOLPHO A. BIRCH, JR., J. and JOE C. LOSER, SP. J., joined. Bruce Timothy Pirtle and Mary M. Little, McMinnville, Tennessee, for the appellant, Findlay Industries/Gardner Manufacturing Division. Barry H. Medley, McMinnville, Tennessee for the appellee, Cathy Judkins. MEMORANDUM OPINION The plaintiff is a single forty-year-old female with a seventh-grade education. She has no work skills, and is qualified only for menial jobs. She filed a complaint on February 24, 2, for workers' compensation benefits alleging that within the course and scope of her employment she "received new injuries, cumulative, consecutive, exacerbations and/or aggravation of injuries, and/or conditions in December 1999." The defendant sought no factual specificity, but alleged any basis for the claim was a non- compensable, pre-existing condition unrelated to plaintiff's employment. The plaintiff testified that she had been employed by the defendant for four years when she was injured on December 16, 1999. The details of the nature of her work are skimpy; she testified that: [Y]ou go back and get racks, you bring them up there . . . I was squatted down looking through the parts, hunting what I needed when this guy was putting up a die. And he came back with a tow motor, backed up, and hit the racks, which knocked me over. The plaintiff finished her shift, although her back was hurting; she reported the occurrence and was given the names of three physicians, one of whom was Dr. Rogers whom she saw "two or three weeks later." She saw Dr. Rogers three times, then saw Dr. Zwemer twice, and finally, Dr. Robinson Dyer. She testified that she had back problems previously, but "that they all got better." She denied having any back problems "immediately before this injury happened." Dr. Zwemer testified, as nearly as can be ascertained, that the plaintiff made no mention of prior back problems; that x-ray examination of her revealed "degenerative disc disease in her lumbar spine," confirmed by an MRI examination, and that "I didn't give her any rating." Counsel referred her to Dr. Dyer, who reported that, based upon his examination of the plaintiff and a review of available medical records, she had a permanent partial impairment related to her injury of 5 percent to her whole body. The trial judge `accepted' the testimony of Dr. Dyer and found that the plaintiff had a 17 percent vocational disability. The defendant appeals, insisting that the evidence preponderates against this finding, which is presented for review. Our review is de novo on the record with a presumption that the judgment is correct unless the evidence preponderates against it. Rule 13(d) Tenn. R. App. P. The essential thrust of the defendant's argument is that the opinion of Dr. Dyer is of no value because it was premised on the false assumption that the plaintiff had suffered no prior back problems. Dr. Dyer submitted a Form C-C2, which does not indicate that his opinion was based upon the absence of prior back problems, and the plaintiff testified that she did not recall whether she related her prior problems to Dr. Dyer or not. The credibility of the plaintiff was assailed, but we must accord deference to the trial judge, who credited her testimony not only as to how the accident, if any, occurred, but also as to the sustaining of the injury, if any, and the extent of it. Kellerman v. Food Lion Inc., 929 S.W.2d 333 (Tenn. 1996). The trial judge also `accepted' the testimony of Dr. Dyer who testified that the -2-
Warren
Workers Compensation Panel
Cathy Mccarson v. Aqua Glass Corporation M2001-03085-WC-R3-CV
Authoring Judge: William H. Inman, Sr. J.
Trial Court Judge: Leonard W. Martin, 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. The plaintiff attributed a host of complaints to the rigors of her employment as gradually occurring or occupationally based. The medical proof was varied and indecisive leading the trial judge to conclude that she failed to carry the burden of proof. We affirm.
Humphreys
Workers Compensation Panel
Lenda T. Mcclain v. Holiday Retirement Corporation M2001-02850-WC-R3-CV
Authoring Judge: William H. Inman, Sr. 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. The plaintiff appeals the judgment dismissing her suit for benefits she attributes to an injury sustained during the course and scope of her employment. Following the presentation of her evidence, the court granted the defendant's Rule 41.2 Motion for Involuntary Dismissal upon a finding that she failed to carry her burden of proving an accidental injury arising out of employment sufficient to establish a prima facie case of entitlement to benefits. The dispositive issue on appeal is whether the involuntary dismissal was appropriately granted. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Circuit Court Affirmed WILLIAM H. INMAN, SR. J., in which ADOLPHO A. BIRCH, JR., J. and JOE C. LOSER, SP. J., joined. William L. Underhill and Michael L. Underhill, Madison, Tennessee, for the appellant, Lenda T. McClain. Richard C. Mangelsdorf, Jr., and Mark W. Honeycutt, II, Nashville, Tennessee, for the appellee, Holiday Retirement Corporation. MEMORANDUM OPINION I. The plaintiff was employed as co-manager, with her husband, of a retirement facility. In addition to a salary, she and her husband were provided an apartment in the facility together with meals and utilities. The circumstances of the termination of her employment are not entirely clear, but we deduce that she was fired after requesting a transfer to another facility. She returned to her apartment to pack her belongings preparatory to vacating the premises and injured her back while packing personal books. The trial judge found that the plaintiff did not sustain an on-job injury because it occurred while she was moving her personal belongings, a task not contemplated as part of the job duties of a co-manager for the retirement facility. II. Appellate review is de novo upon the record of the trial court, accompanied by a presumption of correctness of factual findings, unless the preponderance of the evidence is otherwise. Tenn. Code Ann. _ 5-6-225(e)(2). The panel is not bound by the trial court's findings but conducts an independent examination of the evidence to determine where the preponderance of the evidence lies.
Montgomery
Workers Compensation Panel
Jimmy Rhodes v. City of Monteagle M2001-01584-WC-R3-CV
Authoring Judge: Gray, Sp.J.
Trial Court Judge: Hon. Buddy D. Perry, 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. The trial court found the suit barred by the statute of limitations and granted summary judgment in favor of the City of Monteagle. We affirm.
Grundy
Workers Compensation Panel
Royal & Sunalliance v. John H. Seay M2001-02877-WC-R3-CV
Authoring Judge: William H. Inman, Sr. J.
Trial Court Judge: Robert E. Corlew, III, 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 that the employee sustained an 8 percent vocational disability to his left leg. The employer concedes that Mr. Seay has a malfunctioning leg, but that the award is excessive. We affirm the judgment. 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 ADOLPHO A. BIRCH, JR., J., and , Joe C. Loser, Sp. J., joined. Diana C. Benson and Larry G. Trail, Murfreesboro, Tennessee, for the appellant, Royal & Sunalliance. William J. Butler, Lafayette, Tennessee, for the appellee, John H. Seay. MEMORANDUM OPINION I. Mr. Seay is fifty-six years old and a veteran employee of Nissan. He sustained an undisputed, job-related injury to his left knee which was exacerbated by continuous activity, and diagnosed as a complex tear of the lateral meniscus which was surgically repaired to the extent possible by Dr. E. Ray Lowery, an orthopedic surgeon. In the course of time Mr. Seay returned to work after being released to do so by Dr. Lowery. He testified that his knee was painful, with burning and swelling, which hindered his job duties. After thirty days following his return to work he requested early retirement because he could no longer perform his duties satisfactorily. At the time of trial, Mr. Seay continued to use a cane and was unable to walk one mile. He testified that it was necessary to rest his knee two hours each day. II. Dr. Lowery opined that Mr. Seay had a 1 percent impairment to his leg, attributable 3 percent to the meniscus tear and 7 percent to arthritis. He declined to express an opinion as to whether Mr. Seay's degenerative arthritis was attributable to his job duties. Mr. Seay was referred to Dr. Robert Landsberg, an orthopedic surgeon, for an independent examination. Dr. Landsberg's examination was apparently thorough and in compliance with the AMA Guides. He testified that Mr. Seay walked with a limp, used a cane, that his left thigh was atrophying, (a common problem with knee injuries), that he had a reduced range of motion, with tenderness and swelling. He diagnosed a post-lateral meniscectomy with post- traumatic arthritis, all attributable to Mr. Seay's work at Nissan, and assessed his lower extremity impairment at 17 percent to 18 percent, with permanent restrictions such as no standing more than twenty minutes at a time, no working for more than twenty minutes, and recommended a sedentary job only. III. The trial judge assessed Mr. Seay's impairment to be 8 percent to his left leg. The employer appeals, insisting that the evidence does not support a finding of 8 percent permanent disability to the left lower extremity most of which must be attributed to pre-existing arthritis. Our review is de novo on the record accompanied by the presumption that the judgment is correct unless contrary to the preponderance of the evidence. Rule 13(d) Tenn. R. App. P. It is well settled that deference must be accorded to the trial judge as to the issue of the credibility of Mr. Seay, his wife, and vocational experts who testified concerning employment opportunities.1 See, Elmore v. Travelers Ins. Co., 824 S.W.2d 541 (Tenn. 1992). It is not disputed, as we have noted, that Mr. Seay sustained a compensable injury which resulted in permanent impairment; the sole issue is, how much? An award need not be supported by the absolute certainty of an expert, because expert opinion is generally uncertain and speculative. Kellerman v. Food Lion, Inc., 929 S.W.2d 333 (Tenn. 1996). The aggravation of a pre-existing condition, like arthritis, is compensable if it "advances the severity of the pre-existing condition." Cunningham v. Goodyear Tire & Rubber Co., 811 S.W.2d 888 (Tenn. 1991). Courts are required by the law in this jurisdiction to consider all pertinent factors, including lay and expert testimony, the employees age, education,2 skills and 1 One of these vocational experts, testifying for Mr. Seay, opined that he was totally and perm anen tly vocationally disabled. 2 Mr. Seay graduated high school, but he is barely literate notwithstanding. -2-
