Russell Wellington v. State
M2002-01090-COA-R3-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: Hamilton V. Gayden, Jr.
Inmate appeals the trial court's order dismissing his lawsuit for failure to prosecute. Because the State had been granted a transfer of this case from the Claims Commission for the purpose of consolidating it with another case pending in the trial court, but took the position in this appeal that no consolidation had occurred, we vacate the dismissal and remand.

Dept of Children's Services v. Florence Hoffmeyer
M2002-00076-COA-R3-JV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Max D. Fagan

Gregory Hedges v. TDOC
M2002-00140-COA-R3-CV
Authoring Judge: Judge William C. Koch, Jr.
Trial Court Judge: Barbara N. Haynes

M2002-00076-COA-R3-JV-
M2002-00076-COA-R3-JV-
Trial Court Judge: Max D. Fagan

Gregory Hedges v. TDOC
M2002-00140-COA-R3-CV
Authoring Judge: Judge William C. Koch, Jr.
Trial Court Judge: Barbara N. Haynes

Tyrone Sterling v. Lolita Williams
M2002-00352-COA-R3-CV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: Michael R. Jones
The Chancery Court of Montgomery County awarded Tyrone Sterling a divorce from Lolita R. Sterling and custody of the parties' minor child. Ms. Sterling asserts on appeal that the division of the marital property violated the automatic stay issued in her bankruptcy proceeding, and that the court erred in granting Mr. Sterling the divorce and custody of the child. We affirm the judgment of the trial court.

Roy C. Smith, Jr. v. State of Tennessee
W2001-01457-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Joseph H. Walker, III

The petitioner, Roy C. Smith, Jr., pled guilty to one count of rape of a child and was sentenced to fifteen years incarceration in the Tennessee Department of Correction. Subsequently, the petitioner, acting pro se, filed a petition for a writ of habeas corpus, alleging that his conviction is illegal because he pled guilty to a crime that was not in effect at the time of the commission of the offense.  The trial court dismissed the petition and the petitioner now appeals. Upon review of the record and the parties’  briefs, we affirm the judgment of the trial court.

Roy C. Smith, Jr. v. State of Tennessee - Concurring
W2001-01457-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt
I concur in the results reached by the majority. Although I agree that the petitioner’s sentence may be vulnerable to a proper habeas corpus attack, I see no basis for commenting that the petitioner was convicted pursuant to a statute that was not in effect at the time the offenses were committed.

Mark Edward Warf v. Zion Christian Academy,
M2001-01583-WC-R3-CV
Authoring Judge: John K. Byers, Sr. J.
Trial Court Judge: Stella Hargrove, 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 judge found the plaintiff had suffered an injury arising out of his employment, but found the plaintiff was barred from recovering benefits under the Workers' Compensation Act because he failed to file timely notice of the injury which he suffered. We reverse the judgment of the trial court and remand this case thereto for further proceedings. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Circuit Court Reversed and Remanded JOHN K. BYERS, SR. J., in which FRANK F. DROWOTA III, C. J. and JOE C. LOSER, SP. J., joined. Richard T. Matthews, Columbia, Tennessee, attorney for the appellant, Mark Edward Warf. Luther E. Cantrell, Jr., Nashville, Tennessee, attorney for the appellees, Zion Christian Academy and Church Mutual Insurance Company. MEMORANDUM OPINION The plaintiff has a Bachelors of Science degree, was born September 13, 1959, is married and the father of three children. The plaintiff was a teacher, coach and athletic director at Zion Christian Academy (Zion). His work history is that of a teacher and coach. On March 16, 1999, a student at Zion was electrocuted. The plaintiff was the first adult to reach the student after the accident. The plaintiff gave CPR to the student, however, this was not successful and the student died in his arms. During the course of the CPR, the student regurgitated and the vomit was projected into the plaintiff's mouth and on his clothes and on the student. After the event, the plaintiff and others met with the headmaster and a member of the Board of Directors of Zion. The plaintiff was emotional and upset at the time. The school brought a counselor, a psychologist, to the academy to meet with the teacher. The plaintiff was very upset and expressed his grief at seeing the student for the last time as he lay dead in vomit. The counselor, with the headmaster, helped arrange for the plaintiff to see the student in the casket at a private viewing.1 The plaintiff testified that when school resumed a few days after the event he was unable to concentrate and perform his duties. He was admitted to the hospital on May 18, 1999 with chest pains which apparently were stress related. The plaintiff resigned from Zion at the end of the school year in May 1999. He testified his mental status was not the cause of this but was because of changes made by the headmaster. The headmaster testified the plaintiff's work performance was deficient prior to the death of the student and the retention of the plaintiff was not likely because of this. The plaintiff attempted to teach at other schools but was unable to do so because of his mental condition. Ultimately, the plaintiff began to receive medical care for his condition. The trial judge made the following finding of facts concerning the plaintiff's injury: WORK-RELATED MENTAL INJURY: The Court finds that Plaintiff has suffered a permanent mental injury, arising out of his employment, caused by an identifiable, stressful work-related event producing sudden mental stimulus of fright, shock and excessive, unexpected anxiety; to-wit: the electrocution death of a student. Further, that Plaintiff's stress is extraordinary and unusual in comparison to stress that is ordinarily expected. As a result, the Court finds that Plaintiff's vocational ability has been diminished. The trial court further found that plaintiff knew of his mental illness by November 3, 1999 and that he should have given notice to Zion within thirty days of this. The plaintiff did not give notice, written or otherwise, until July 6, 2 when he delivered a message to the headmaster concerning his mental injury. The trial judge found the plaintiff gave no reasonable excuse for failure to do so. The insurance company sent a letter to the plaintiff after he delivered the message to the head master that the plaintiff would receive no compensation because he suffered no physical injury. 1The viewing and funeral was to be closed casket. -2-

State of Tennessee v. Harley B. Upchurch
M2001-03170-CCA-R3-CD
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Judge Lillie Ann Sells

Defendant pled guilty to burglary, theft under $500, and vandalism under $500 and was sentenced by the trial court to an effective sentence of four years with the requirement that he serve one year "day for day" in the county jail followed by twelve years of supervised probation. On appeal, defendant contends (1) the length of his sentence is excessive; (2) he should have been granted full probation; and (3) the trial court erred in requiring him to serve his time of confinement "day for day." We remand for deletion of the "day for day" requirement because it deprives the defendant of the opportunity to earn statutory sentencing credits; however, we affirm the judgments of the trial court in all other respects.

State of Tennessee v. Harley B. Upchurch
M2001-03170-CCA-R3-CD
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Judge Lillie Ann Sells

Defendant pled guilty to burglary, theft under $500, and vandalism under $500 and was sentenced by the trial court to an effective sentence of four years with the requirement that he serve one year "day for day" in the county jail followed by twelve years of supervised probation. On appeal, defendant contends (1) the length of his sentence is excessive; (2) he should have been granted full probation; and (3) the trial court erred in requiring him to serve his time of confinement "day for day." We remand for deletion of the "day for day" requirement because it deprives the defendant of the opportunity to earn statutory sentencing credits; however, we affirm the judgments of the trial court in all other respects.

State of Tennessee v. David Allen Lackey
M2001-01043-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Seth W. Norman

A Davidson County jury convicted the Defendant of one count of premeditated murder, one count of felony murder during the perpetration of a theft, and one count of misdemeanor theft. The trial
court merged the two murder convictions and sentenced the Defendant to life imprisonment in the Tennessee Department of Correction for the murder conviction. The trial court sentenced the
Defendant to eleven months and twenty-nine days for the theft conviction and ordered that the sentence run concurrent with the murder sentence. The Defendant now appeals, challenging the
sufficiency of the evidence supporting the murder convictions and arguing that the trial court erred in failing to suppress his confession. After review, we affirm the judgments of the trial court.

David Michael Long v. State of Tennessee
E2001-03086-CCA-R3-PC
Authoring Judge: Presiding Judge Gary R Wade
Trial Court Judge: Judge Carroll L. Ross

The petitioner, David Michael Long, appeals the denial of his petition for post-conviction relief. In this appeal of right, the petitioner asserts that his plea was neither knowingly nor voluntarily made and that he was denied the effective assistance of counsel. The judgment of the trial court is affirmed

State of Tennessee v. Ivan E. Cummings
M2001-00407-CCA-R3-CD
Authoring Judge: Judge Joseph M. Tipton
Trial Court Judge: Judge Robert W. Wedemeyer

The defendant, Ivan E. Cummings, pled guilty in the Montgomery County Circuit Court to aggravated child abuse, aggravated child neglect, and second degree murder, Class A felonies. The trial court merged the aggravated child abuse and neglect convictions and sentenced the defendant as a Range I, standard offender to twenty-four years in the Tennessee Department of Correction. For the second degree murder conviction, the trial court sentenced the defendant to twenty-five years to be served concurrently with the twenty-four-year sentence. The defendant appeals, claiming that the trial court erroneously applied enhancement factors to his convictions. We affirm the judgments of the trial court.

The Evidence Is Otherwise. Tenn. Code Ann. _ 50-6-225(E)(2). Stone v. City of Mcminnville, 896
M2001-01949-WC-R3-CV
Authoring Judge: Byers, Sr.J.
Trial Court Judge: Carol Mccoy, 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 plaintiff appeals the trial judge's decision that the defendant suffered the work-related injury of bilateral carpal tunnel syndrome which resulted in a 12 percent permanent partial disability to each arm. We affirm the judgment of the trial court. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Chancery Court is Affirmed BYERS, SR.J., in which DROWOTA, C.J., and LOSER, SP.J., joined. David T. Hooper, of Brentwood, Tennessee, for Appellant, Alcoa Fujikura, Ltd. N. Evan Harris, of Nashville, Tennessee, for Appellee, Kenneth Anderson. MEMORANDUM OPINION Review of the findings of fact made by the trial court is de novo upon the record of the trial court, accompanied by a presumption of the correctness of the finding, unless the preponderance of the evidence is otherwise. Tenn. Code Ann. _ 5-6-225(e)(2). Stone v. City of McMinnville, 896 S.W.2d 548, 55 (Tenn. 1995). The application of this standard requires this Court to weigh in more depth the factual findings and conclusions of the trial courts in workers' compensation cases. See Corcoran v. Foster Auto GMC, Inc., 746 S.W.2d 452, 456 (Tenn. 1988). FACTS The defendant was fifty years of age at the time of this trial. He is a high school graduate and he attended two years of college studying automotive technology. He testified at trial that he began working for the plaintiff's company, Dixie Wire, as a utility operator in 1993. As a utility operator, the defendant testified that his duties included some repetitious work with his hands and arms. In 1997, the defendant began working as a PVC extruder operator for Dixie Wire. He testified that his duties in this position involved quite a bit more use of his hands, wrists, and arms. Outside of his employment at Dixie Wire, the defendant also laid carpet for supplemental income. He testified that from 1993 to when he performed his last carpet job in 1999, he performed a total of 38 carpet jobs, averaging about six hours of carpet work per month. He testified that he never had any problems with his wrists or hands while performing carpet work. In 1997, while working as a PVC extrude operator, the defendant began to notice numbness and tingling in his hands and wrists. He went to see Dr. Darrell G. Arnett but was not treated for the numbness and tingling at that time. The defendant testified that his hand and wrist problems abated for some time after that. In 1998, while still working as a PVC extruder operator for Dixie Wire, the defendant's problems with his hands going numb reappeared and worsened. He saw Dr. Arnett again on January 22, 1999, and Dr. Arnett diagnosed the defendant with bilateral carpal tunnel syndrome. The defendant then saw Dr. Thomas E. Tompkins on June 29, 1999. Dr. Tompkins concurred with the diagnosis of bilateral carpal tunnel syndrome and recommended the defendant have surgery. The defendant was at first reluctant to have surgery, but after more problems at work with his hands going numb he decided to have the surgery, after which he returned to work. MEDICAL EVIDENCE The medical evidence for the purposes of the issues raised in this trial was presented by the depositions of Dr. Darrell E. Arnett and Dr. Thomas E. Tompkins. Dr. Arnett, an internal medicine specialist in Nashville, testified that he first saw the defendant on August 14, 1997. At that time, the defendant complained of weakness and paresthesias.1 Dr. Arnett testified that the defendant next visited him on January 22, 1999, at which time the defendant complained of his hands going numb 15 to 2 times daily. At that time, Dr. Arnett testified, he diagnosed the defendant with bilateral carpal tunnel syndrome. Dr. Arnett did not form any opinion as to causation at that time, but later at deposition, when given the defendant's full history, Dr. Arnett testified that it was his opinion that the defendant's work at Dixie Wire was 1Paresthesias is numbness and tingling of the arms and legs. -2-

State of Tennessee v. Wendy Stevens
M2001-02464-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Timothy L. Easter

The appellant, Wendy Stevens, pled guilty in the Williamson County Circuit Court to one count of forgery involving a value of more than $500 but less than $1,000, and one count of fraudulent use of a credit card involving a value of more than $500 but less than $1,000, both Class E felonies. The trial court sentenced the appellant to eighteen months incarceration in the Tennessee Department of Correction for each offense, but immediately suspended the sentence in favor of supervised probation. On appeal, the appellant complains that the trial court erred by failing to grant her judicial diversion. Upon review of the record and the parties' briefs, we affirm the judgment of the trial court.

Johnny McClain v. State of Tennessee
M2001-02713-CCA-R3-PC
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge J. Randall Wyatt, Jr.

The Appellant, Johnny McClain, appeals as of right from the judgment of the Davidson County Criminal Court denying his petition for post-conviction relief. On appeal, the Appellant argues that he received ineffective assistance of counsel. After review of the record, we find that the Appellant's brief fails to provide any argument in support of the issue as presented. Due to the Appellant's procedural default, the appeal is dismissed.

Memphis Publishing Company, et al, v. Cherokee Children & Family Services, Inc., et al. and John Morgan v. Cherokee Children & Family Svcs., Inc.
M2000-01705-SC-R11-CV
Authoring Judge: Justice Adolpho A. Birch, Jr.
Trial Court Judge: Judge John R. McCarroll, Jr.

These two cases, consolidated for consideration, present two issues of enormous significance. First, we must decide whether a non-profit corporation that provides privatized services to a governmental entity is subject to the public access requirements of the Tennessee Public Records Act. The second issue concerns the authority of the state, acting through the Comptroller of the Treasury, to require said corporation to submit to a state audit. In Memphis Publishing Co. v. Cherokee Children & Family Services, Inc., Memphis Publishing Company and others seek access to records belonging to Cherokee Children & Family Services, Inc., a non-profit corporation which contracted with the Tennessee Department of Human Services to help administer a state-subsidized day care program. In seeking access to the records, the plaintiffs rely on both the Tennessee Public Records Act and provisions in the contracts between the corporation and the state. In Morgan v. Cherokee Children & Family Services, Inc., the Comptroller of the Treasury, John Morgan, seeks to require the same corporation to submit to a state audit. As authority for the audit, Morgan relies upon the contracts at issue in Memphis Publishing Co. and upon 2000 Tenn. Pub. Acts. 960 (now codified at Tenn. Code Ann. § 8-4-116 (Supp. 2001)), which authorizes the Comptroller to audit the records of entities which derive fifty percent or more of their gross revenue from state or local government. The trial -2- courts in the two cases found that Cherokee Children & Family Services, Inc. was not a governmental agency, but that all records in its possession were state property pursuant to the contracts between it and the state. Additionally, the trial court in Morgan found that an audit was authorized by 2000 Tenn. Pub. Acts 960. The Court of Appeals reversed, holding that (1) the contractual provisions at issue did not render the records public; (2) Cherokee Children & Family Services, Inc. was not a governmental agency subject to the Public Records Act; and (3) retroactive application of 2000 Tenn. Pub. Acts 960 in Morgan would be unconstitutional. We granted permission to appeal. Because we have determined, for the reasons outlined below, that Cherokee Children & Family Services, Inc. operates as the “functional equivalent” of a governmental (state) agency, we hold that all of its records are subject to the Tennessee Public Records Act and therefore
are accessible by the public. This resolution effectively resolves the audit issue, and a separate decision thereupon is unnecessary. Accordingly, the judgment of the Court of Appeals is reversed, and the cause is remanded to the trial court for further proceedings consistent with this opinion. Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Appeals Reversed
 

State of Tennessee v. Willie Neal Burton
W2001-02997-CCA-R3-CD
Authoring Judge: Judge Joseph M. Tipton
Trial Court Judge: Judge Roger A. Page

The defendant, Willie Neal Burton, appeals as of right from the Chester County Circuit Court's revocation of his community corrections sentence. The trial court found that he had violated the terms of his community corrections sentence by conduct unbecoming good citizenship, involving arrests and convictions for subsequent offenses while serving his community corrections sentence. It sentenced the defendant to a six-year sentence as a career offender. The defendant contends that the trial court erroneously revoked his community corrections sentence and that the resulting six-year sentence is excessive. We affirm the trial court's revocation and sentence.

Lee O. Anderson v. State of Tennessee
W2001-02951-CCA-R3-PC
Authoring Judge: Judge Joseph M. Tipton
Trial Court Judge: Judge Jon Kerry Blackwood

The petitioner, Lee O. Anderson, appeals the Fayette County Circuit Court's denial of his petition for post-conviction relief from his convictions for delivery of one-half gram of cocaine and delivery of less than one-half gram of cocaine. This court affirmed the judgments of conviction. See State v. Lee O. Anderson, No. W2000-00671-CCA-R3-CD, Fayette County (Tenn. Crim. App. Feb. 9, 2001), app. denied (Tenn. June 25, 2001). The petitioner claims that he received the ineffective assistance of counsel because his trial attorney (1) failed to present evidence of the petitioner's treatment for drug addiction in order to support a casual exchange defense and (2) failed to raise an insufficiency of the evidence claim on appeal of his convictions. We affirm the judgment of the trial court.

State of Tennessee v. Donald E. Bryant
E2001-01255-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge D. Kelly Thomas, Jr.
Following a bench trial, defendant, Donald E. Bryant, was found guilty of two counts of aggravated assault and one count of misdemeanor theft. He was sentenced as a persistent Range III offender to serve twelve years for each aggravated assault, and eleven months and twenty-nine days for the misdemeanor theft; all sentences were ordered to be served concurrently. In this appeal, defendant challenges the sufficiency of the evidence to support the two convictions for aggravated assault. After reviewing the record and the applicable law, we affirm the judgments of the trial court.

State of Tennessee v. James L. Partin
E2001-02254-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge E. Shayne Sexton
Defendant, James L. Partin, was indicted for the offenses of second degree murder, aggravated assault, three counts of felony reckless endangerment, and unlawful possession of a weapon with intent to use it in the commission of felony reckless endangerment. Pursuant to a negotiated plea agreement, defendant pled guilty to voluntary manslaughter, a lesser-included offense of second degree murder, and all other charges were dismissed. The plea agreement further provided that the trial court would determine the length and manner of service of defendant's sentence, with the sole parameter being that he be sentenced as a standard Range I offender. Following a sentencing hearing, the trial court ordered that defendant serve five years in confinement in the Department of Correction. In this appeal, defendant contends that the trial court erred in determining the length and manner of service of his sentence. After a thorough review of the sentencing proceeding, we affirm the judgment of the trial court concerning the length of defendant's sentence. We reverse the trial court's judgment regarding manner of service, however, and order that defendant serve his sentence on split-confinement.

State of Tennessee v. James L. Partin
E2001-02254-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge E. Shayne Sexton
Defendant, James L. Partin, was indicted for the offenses of second degree murder, aggravated assault, three counts of felony reckless endangerment, and unlawful possession of a weapon with intent to use it in the commission of felony reckless endangerment. Pursuant to a negotiated plea agreement, defendant pled guilty to voluntary manslaughter, a lesser-included offense of second degree murder, and all other charges were dismissed. The plea agreement further provided that the trial court would determine the length and manner of service of defendant's sentence, with the sole parameter being that he be sentenced as a standard Range I offender. Following a sentencing hearing, the trial court ordered that defendant serve five years in confinement in the Department of Correction. In this appeal, defendant contends that the trial court erred in determining the length and manner of service of his sentence. After a thorough review of the sentencing proceeding, we affirm the judgment of the trial court concerning the length of defendant's sentence. We reverse the trial court's judgment regarding manner of service, however, and order that defendant serve his sentence on split-confinement.

State of Tennessee v. Timothy Wayne Holland
M2001-03129-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Michael R. Jones

The defendant was convicted of facilitation of aggravated robbery and aggravated burglary for his participation with a codefendant in robbing a resident of a Springfield motel and burglarizing his room. The trial court sentenced him as a Range I, standard offender to an effective sentence of six years. Following the denial of his motion for a new trial, he filed a timely appeal to this court, raising the following issues: (1) whether the trial court properly denied his motion for a new trial based on his claim of an improper closing by the State; and (2) whether the trial court properly denied his request for a jury instruction on accessory after the fact. Based on our review, we affirm the judgment of the trial court.

Eddie L. Coley, Jr. v. State of Tennessee
M2001-03130-CCA-R3-PC
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Donald P. Harris

The petitioner, Eddie L. Coley, Jr., was convicted of aggravated robbery in 1996 and sentenced to confinement for twelve years. Following an unsuccessful appeal of his conviction, he filed a petition for post-conviction relief, alleging that his trial counsel was ineffective for not filing a motion to suppress a photographic lineup and not allowing him to testify at his trial. The post-conviction court denied the petition; and, following our review, we affirm that denial.