Jimmy Joe Savage, et al., v. Don Hildenbrandt
M1999-00630-COA-R3-CV
Authoring Judge: Judge William C. Koch, Jr.
Trial Court Judge: Chancellor Russell Heldman

This appeal involves a dispute among neighbors arising out of a couple's decision to place a double-wide mobile home on their property. After one of their neighbors blocked the access road to their property to prevent them from setting up their mobile home, the couple who owned the mobile home filed suit in the Chancery Court for Perry County seeking injunctive relief and damages. In response, two of the neighboring property owners requested the trial court to establish the boundary lines, to enjoin the couple from encroaching on their property, and to award actual and punitive damages for the damage that the couple's encroachment had caused to their property. Following a bench trial that continued past midnight and a series of post-trial motions requesting various corrections in the judgment, the trial court eventually established the disputed boundary line and awarded the couple a $6,110.50 judgment against one of their neighbors to compensate them for the damages stemming from the delay in setting up their mobile home. The two neighboring property owners have appealed. They take issue with (1) the trial court's decision to hold court past midnight, (2) the manner in which the trial court considered and disposed of their post-judgment motions, (3) the trial court's decision regarding the location of the southern boundary line of the couple's property, and (4) the trial court's failure to reduce the $6,110.50 judgment by the amount of the damages the couple's encroachment had caused. We have concluded that the trial court did not commit reversible error during either the trial or the post-trial proceedings and that the trial court's decision to award the couple $6,110.50 is supported by the evidence. However, we have also concluded that the evidence preponderates against the trial court's decision regarding a portion of the couple's southern boundary line. Accordingly, we remand the case for the sole purpose of correcting the error regarding a portion of this boundary line.

Tanya Tucker, et al., v. Capitol Records, Inc. - Concurring
M2000-01765-COA-R3-CV
Authoring Judge: Judge Patricia J. Cottrell
Trial Court Judge: Chancellor Irvin H. Kilcrease, Jr.

I concur in the majority’s conclusion that Tenn. R. App. P. 54.02 does not provide this court
with jurisdiction in this case for the reasons set out in the majority opinion. I would, however, treat
this appeal as an interlocutory appeal under Tenn. R. App. P. 9. Bayberry would allow us to waive
the finality requirement of Tenn. R. App. P. 3(a) if we found good reason to suspend that
requirement.

In re: L.S.W., et al
M2000-01935-COA-R3-JV
Authoring Judge: Judge Patricia J. Cottrell
Trial Court Judge: Judge Max D. Fagan

This case involves the termination of parental rights of the mother of four children who were removed from the mother's home by the Department of Children's Services in 1998 and placed in foster care. DCS devised a Plan of Care for the mother, which, among other things, required her to address her drug and alcohol addictions. During the two and one-half years between the removal of the children from the home and the hearing on the petition to terminate parental rights, the mother made token efforts to improve her situation, but her substance abuse continued. The trial court terminated the mother's parental rights on multiple grounds, including the ground that the conditions that led to the children's removal continued to persist with little likelihood of remedy. Because DCS has established grounds for termination and has established that termination is in the best interest of the children, we affirm.

State of Tennessee v. Jason Allen Mobley and Debra Jean Mobley
W2000-01884-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Julian P. Guinn

Following a police search of their home pursuant to a warrant, the defendants, mother and son, were each indicted on one count of possession of marijuana with the intent to manufacture, sell, or deliver, a Class E felony, and one count of possession of drug paraphernalia, a Class A misdemeanor. At the conclusion of their joint trial, the son was found guilty of both counts as charged in the indictment. The jury found the mother guilty of simple possession of marijuana, a Class A misdemeanor, and possession of drug paraphernalia. The trial court denied their motions for new trials, and the defendants filed timely appeals to this court. On appeal, the defendants challenge the sufficiency of the evidence in support of their respective convictions. The State raises the additional issue of whether the defendants may properly be represented by the same appellate counsel when the record is silent concerning whether the trial court addressed the possible conflict created by the joint representation. After a careful review of the record and an analysis of applicable law, we affirm the judgments of the trial court.

State of Tennessee v. Randall Keith Smith
W2000-02596-CCA-R3-CD
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge Julian P. Guinn

The appellant, Randall Keith Smith, appeals from the denial of his motion to suppress evidence seized in his residence during the execution of a search warrant. A written "motion to suppress" was filed with the clerk on the day prior to Smith's scheduled trial for drug charges. On the date of trial, following the close of all proof in the case, Smith's trial counsel orally moved to suppress the evidence seized as a result of the search, based upon the grounds recited in the written motion. The trial court denied the motion, finding that (1) there was no factual basis to support suppression; and (2) the motion was untimely. The jury found Smith guilty of manufacturing methamphetamine, a Class C felony, and he received a three-year community corrections sentence. After review, we find the Appellant's suppression motion untimely. Accordingly, the judgment is affirmed.

State of Tennessee v. Donald Steve Sikes
W2000-02960-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Donald H. Allen

As the result of an altercation with the manager of a fast food restaurant, the defendant was convicted by a jury of aggravated assault, a Class C felony; assault, a Class A misdemeanor; unlawful possession of a handgun while under the influence, a Class A misdemeanor; and the unlawful possession of a weapon with the intent to go armed, as a Class C misdemeanor. He was sentenced by the trial court to an effective sentence of four and one-half years, with 150 days in confinement, and the remainder of his time on intensive probation. Following the denial of his motion for a new trial, the defendant filed a timely appeal to this court, raising the issues of whether the evidence was sufficient to support his convictions of possession of a weapon with the intent to go armed and possession of a handgun while under the influence, and whether the trial court erred in enhancing his aggravated assault sentence to four and one-half years and sentencing him to intensive probation. Based on a careful review, we conclude that the evidence was sufficient to support the defendant's convictions, and that the trial court did not err in enhancing the defendant's sentence for aggravated assault. Accordingly, we affirm the judgment of the trial court.

Elmer L. Fritts, Sr. v. James M. Dukes, Warden, and State of Tennessee
W2001-00833-CCA-R3-CD
Authoring Judge: Judge Alan E.Glenn
Trial Court Judge: Judge Joseph H. Walker, III

Petitioner appeals the summary dismissal of his petition for habeas corpus relief which alleged that the charges against him were untrue, that the statutes of limitations as to the charges had expired before he was charged, and that his counsel was ineffective. The post-conviction court determined that the allegations contained in the petitioner's pro se petition did not entitle him to habeas corpus relief. After careful review of the record, we affirm the dismissal of the petition.

Lori Ann Prosser v. Bedford County Board of Education
M2000-02424-WC-R3-CV
Authoring Judge: Joe C. Loser, Jr., Sp. J.
Trial Court Judge: F. Lee Russell, Judge
This workers' compensation appeal has been referred to theSpecial 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, Bedford County Board of Education, insists (1) the trial court erred in finding the employee provided the employer with proper notice of her injury, (2) the award of permanent partial disability benefits based on 42 percent to the body as a whole is excessive, (3) the trial court erred in awarding temporary total disability benefits for the period of April 4, 1996 through September 4, 1998, for a total of 129 weeks, (4) the trial court erred in ordering the employer to be responsible for the bills of non-approved physicians, and (5) the trial court erred in ordering the employer to reimburse the carriers who already partially paid the medical bills, even though they were not parties to the case. As discussed below, the panel has concluded the award of medical benefits to non- parties should be vacated, the award of temporary total disability benefits modified and the judgment otherwise affirmed. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Circuit Court Vacated in part; Modified in part; Affirmed in part; Remanded. JOE C. LOSER, JR., SP. J., in which ADOLPHO A. BIRCH, JR., J., and JAMES WEATHERFORD, SR. J., joined. Kent E. Krause and Gordon C. Aulgur, Nashville, Tennessee, for the appellant, Bedford County Board of Education. Andrew C. Rambo, Shelbyville, Tennessee, for the appellee, Lori Ann Prosser. MEMORANDUM OPINION The employee or claimant, Lori Ann Prosser, worked for the employer as a school bus driver. On March 14, 1996, she ran her early morning route and had parked her bus at Central High School to drive students on a field trip. She conducted a pre-trip inspection, which included cleaning out the bus and checking the oil, then went outside to have coffee with her co- workers. When she bent over to set her coffee down, she felt immediate pain starting in her back and going down her right leg. She drove her bus on the field trip without notifying the employer of her injury. After the field trip, she called her supervisor, Tim Fleming, and, according to her testimony, told him she hurt her back while preparing for the field trip and needed to see a doctor. Fleming remembered having the conversation, but testified that the claimant never told him that she had a job related injury. The trial judge believed the claimant. After continuing to work for two more weeks, then again contacting Fleming, the claimant reported to a Murfreesboro emergencyroom and was referred to Dr. Robert Weiss. An MRI, ordered by Dr. Weiss, revealed disc herniations at L4-5 and L5-S1. Dr. Weiss performed corrective surgery on April 24, 1996. A second surgical procedure was performed five days later. When the employer failed to provide medical care and the claimant's disabling pain was not relieved, the claimant sought out Dr. Robert McCombs on October 28, 1996. Dr. McCombs performed a third surgical procedure on April 1, 1997 and provided follow-up care until December 1, 1997, when, the doctor reported, the claimant reached maximum medical improvement. His final diagnosis was chronic lumbar radiculopathy and he estimated her permanent impairment at 13 percent to the whole body. Dr. McCombs also restricted her from lifting more than 2 pounds at all or more than 5 pounds repetitively and from prolonged bending, twisting or stooping. When the claimant continued to have back problems and an MRI scan revealed a recurrent disc herniation at L5-S1, a fourth surgery was performed on September 24, 1998. She reached maximum medical improvement from that surgery on February3, 1999 and Dr. McCombs estimated her permanent impairment at 14 percent to the whole body. The claimant continues to take medication and is severely limited in her activities, including driving. She has not returned to work. The record contains conflicting lay proof. Her husband and a friend support the claimant's testimony, but two other bus drivers testified that the claimant did not appear to be injured on the date of the accident. Upon the above summarized evidence, the trial court awarded temporary total disability benefits from April 4, 1996 through September 24, 1998, ordered the employer to pay the bills of the named physicians and to reimburse any non-party health insurance carrier that had paid the bills in part, without naming the carrier or the amount of the award, and awarded permanent partial disability benefits based on 42 percent to the body as a whole. 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). This tribunal is not bound by the trial court's findings but instead conducts an independent examination of the -2-

John Clark Garrison v. State of Tennessee
E2000-00858-CCA-R3-PC
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Julian P. Guinn

Petitioner, John Clark Garrison, filed a petition for post-conviction relief attacking his two convictions for theft of property over the value of $10,000.00 but less than $60,000.00. Petitioner was represented by counsel who filed the petition for post-conviction relief on his behalf. The State filed a response to the petition. The trial court dismissed the petition without an evidentiary hearing, finding that all of the issues were either previously determined, waived, insufficient to assert specific allegations of ineffective assistance of counsel, or presented no question of constitutional deprivation. We affirm the judgment of the trial court.

Charles Montague v. State of Tennessee
E2000-01330-CCA-R3-PC
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Lynn W. Brown

The petitioner appeals from the post-conviction court's summary dismissal of his post-conviction relief petition for failing to be properly verified under oath. The issue is whether a petition for post-conviction relief must be verified under oath and whether the petitioner's "affidavit and sworn statement" was sufficient to satisfy that requirement. We conclude that the post-conviction court was correct in summarily dismissing the petition for failing to be properly verified under oath.

George R. Lee v. T.I.G. Insurance,
E2000-02726-WC-R3-CV
Authoring Judge: John K. Byers, Sr. J.
Trial Court Judge: Harold Wimberly, Chancellor
The trial court based its findings on both the lay and expert testimony_notably the fact that the employee had been performing his job for seventeen or eighteen years and as a result of the incident was unable to continue in his position because of his age. The trial court also noted the plaintiff's "obvious limitations as to education and intellectual ability" as well as the vocational disability experts opinions that the plaintiff's occupational loss was between 45 and 8%. The evidence does not preponderate against the trial court's findings in this regard. The judgment of the trial court is affirmed.

Maggie Jean Hicks v. Kroger Food Stores, Inc.,
E2000-01449-WC-R3-CV
Authoring Judge: John K. Byers, Sr. J.
Trial Court Judge: James B. Scott, Jr., Judge
The plaintiff filed a petition under Tennessee Code Annotated _ 5-6-241(a)(2) for reconsideration of her previous workers' compensation award, which was awarded to her by an order dated March 25, 1999 and which limited her to an award of seventeen percent based upon the two and one-half times the medical impairment rating she sustained as a result of an injury on December 12, 1996, because she returned to work at a rate of pay equal to or greater than what she received prior to the injury. The trial judge found the plaintiff could properly file for reconsideration and increased the amount of the plaintiff recovery from seventeen percent permanent partial vocational disability to forty percent partial vocational disability. We reverse the judgment of the trial court.

Richard Burt McKee v. State of Tennessee
M2000-2866-CCA-R3-PC
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge Robert E. Burch

The Defendant was convicted by a jury of first degree premeditated murder and sentenced to life imprisonment without parole. His conviction and sentence were affirmed on direct appeal. See State v. Richard Burt McKee, No. 01C01-9606-CC-00278, 1998 WL 155558, at *1 (Tenn. Crim. App., Nashville, Mar. 31, 1998). The Defendant filed for post-conviction relief in December 1998 alleging that he received ineffective assistance of counsel at trial and on appeal and that juror misconduct during deliberations entitles him to a new trial. The post-conviction court denied relief after an evidentiary hearing. The Defendant now appeals as of right. Finding no merit in the Defendant's contentions, we affirm the post-conviction court's judgment.

George D. Fitzpatrick v. State of Tennessee
M2000-02566-CCA-R3-PC
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Cheryl A. Blackburn

The Davidson County Grand Jury indicted the Petitioner for one count of rape and one count of assault. The Petitioner's first trial ended with a hung jury. Following a second trial, the Petitioner was convicted of rape and assault, and sentenced to an effective thirty years of incarceration. His convictions and sentences were upheld on direct appeal. See State v. George D. Fitzpatrick, No. 01C01-9709-CR-00398, 1998 WL 775665 at *1, Davidson County (Tenn. Crim. App., Nashville, Nov. 4, 1998), perm. to appeal denied (Tenn. 1999). Subsequently, the Petitioner filed a timely petition for post-conviction relief alleging ineffective assistance of counsel at his trial. After a hearing the court below dismissed the petition, from which ruling the Petitioner now appeals. Upon our review of the record, we affirm the judgment of the post-conviction court.

State vs. Kermit Maurice Cozart
W1999-00022-SC-R11-CD
Authoring Judge: Justice Janice M. Holder
Trial Court Judge: Julian P. Guinn
We granted review of this case to decide whether a trial court must instruct the jury based upon this Court's holding in State v. Anthony, 817 S.W.2d 299 (Tenn. 1991). We hold that the trial court properly declined to instruct the jury that it should determine whether the confinement, movement, or detention inherent in the kidnapping was essentially incidental to the accompanying robbery. Applying the principles first enunciated in Anthony, we further hold that the dual convictions for aggravated robbery and aggravated kidnapping in this case do not violate due process. Accordingly, we affirm the judgment of the Court of Criminal Appeals.

State of Tennessee v. Melvin E. Beard
M2000-02394-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Timothy L. Easter

The appellant, Melvin E. Beard, was convicted in the Williamson County Circuit Court of one count of the sale and delivery of less than .5 grams of crack cocaine, a class C felony. The trial court sentenced the appellant to ten years incarceration in the Tennessee Department of Correction and imposed a fine of two thousand dollars ($2000). On appeal, the appellant raises the following issues for our review: (1) whether the evidence at trial was sufficient to sustain the appellant's conviction; (2) whether the trial court erred in allowing the State to introduce the portion of an audio tape recording of the drug transaction that occurred outside the presence of the appellant; (3) whether the trial court erred in refusing to grant the appellant's motion for mistrial; and (4) whether the trial court erred in sentencing the appellant. Upon review of the record and the parties' briefs, we affirm the judgment of the trial court.

Deborah Louise Reese v. State of Tennessee
M2000-02553-CCA-R3-PC
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge J. S. Daniel

The petitioner, Deborah Louise Reese, pled guilty in the Rutherford County Circuit Court to one count of felony murder, one count of especially aggravated robbery, and one count of conspiracy to commit especially aggravated robbery. The trial court sentenced the petitioner to a total effective sentence of life imprisonment. Thereafter, the petitioner filed a petition for post-conviction relief alleging that she received ineffective assistance of counsel and that her guilty pleas were neither voluntarily nor knowingly made. Following an evidentiary hearing, the post-conviction court dismissed the petition. The petitioner now appeals this ruling. Upon review of the record and the parties' briefs, we affirm the judgment of the post-conviction court.

Larry Wade v. State of Tennessee
M2000-01260-CCA-R3-PC
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Seth W. Norman

The petitioner, Larry Wade, appeals the denial of his petition for post-conviction relief by the Criminal Court for Davidson County. He asserts that the ineffective assistance of counsel and the unknowing and involuntary nature of his guilty pleas entitle him to relief from his convictions of attempted second degree murder and possession of one-half gram or more of cocaine with intent to sell. Following a review of the record and the parties' briefs, we affirm the judgment of the post-conviction court.

Lloyd Paul Hill v. State of Tennessee
M2000-01428-CCA-R3-PC
Authoring Judge: Judge Jerry L. Smith
Trial Court Judge: Judge Leon C. Burns, Jr.

On September 25, 1998, the petitioner entered best interest pleas to four counts of child rape. For these offenses he received concurrent sixteen year sentences. According to the announced plea the convictions arising out of Pickett and Overton Counties were set to be served at thirty percent while the Putnam County convictions were at one hundred percent with the potential to be reduced to eighty-five percent. Within the statute of limitations the petitioner filed a post-conviction petition alleging that his plea was not knowingly and voluntarily entered concerning the consequences thereof. Subsequently, the trial court conducted a hearing and later denied the relief sought in the petition. It is from that denial that the petitioner brings the present appeal continuing to maintain that his plea was not knowingly and voluntarily entered. After reviewing the record and applicable caselaw, we find that the sentences imposed are illegal and, therefore, reverse and remand the matter.

Lisa Heath vs. Memphis Radiology
W2000-02770-COA-R3-CV
Authoring Judge: Judge W. Frank Crawford
Trial Court Judge: Robert L. Childers
This is a medical malpractice case. Plaintiff sued physician, radiological group and hospital, alleging failure to discover and diagnose her malady resulting in permanent physical impairment. The trial court entered judgment for the defendants on a jury verdict, and plaintiff appealed asserting evidentiary errors and the failure of the trial judge to perform his duty as the thirteenth juror. We affirm

Estate of James Kirk vs. James Lowe
W2000-02858-COA-R9-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: C. Creed Mcginley
The Plaintiffs in this case sued "John Doe," an unknown driver, for injuries and damages resulting from the death of Plaintiffs' decedent. Process was served on decedent's uninsured motorist insurance carrier pursuant to Tennessee's Uninsured Motor Vehicle Coverage statutes. More than one year after the accident, the identity of the "John Doe" was discovered and Plaintiffs filed an amended complaint, naming him as Defendant. The Defendant moved for summary judgment on the basis that he was never an uninsured motorist, but at all pertinent times was insured, and that the one-year statute of limitations had expired. The trial court denied the motion, and we reverse.

Shirley Pegues vs. Lester Graves
W2000-02831-COA-R3-CV
Authoring Judge: Judge W. Frank Crawford
Trial Court Judge: Kay S. Robilio
Plaintiffs, husband and wife, sued physician when wife became pregnant after physician had performed a pregnancy avoidance procedure and allegedly guaranteed the results thereof. Defendant moved for a directed verdict which the trial court granted, but plaintiffs contend that it was granted after plaintiffs took a nonsuit. Plaintiffs appeal. We reverse.

Laquita Ailsworth vs. Autozone
W2000-03024-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Robert A. Lanier
This appeal arises from the fall of the Appellant outside the Appellee store. The Appellant filed a complaint against the Appellees in the Circuit Court of Shelby County alleging that her injuries were proximately caused by the Appellees' negligence in allowing an icy condition to exist on the walkway in front of the store. The Appellees filed motions for summary judgment. The trial court granted the Appellees' motions for summary judgment. The Appellant appeals the grant of summary judgment in favor of the Appellees by the Circuit Court of Shelby County. For the reasons stated herein, we reverse the trial court's decision.

Union Planters vs. Bettye Dedman
W2001-00411-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Robert S. Benham
This case is a dispute over the correct valuation of the residuary portion of Testator's estate for purposes of determining whether it was sufficient to pay estate taxes where Testator had directed by Will that such taxes be paid from the residuary. Testator's executor submits that the correct valuation date is the date of death; that neither post-death income nor appreciation of assets in the residuary should be included in the valuation; that income tax paid by the estate on income with respect to a decedent (IRD) should be included in a calculation of the death tax fund deficiency; that attorney's fees incurred as a result of protracted litigation should be included in the death tax fund deficiency calculation. Executor asks us to determine whether such deficiencies are apportionable among those receiving gifts passing outside of probate. We hold that the correct valuation date of the residuary for the purpose of determining its sufficiency to pay the death taxes is the date of Testator's death. Post-death increases should not be utilized. If the residuary on the date of death was insufficient to pay the estate taxes, these taxes are apportionable among all those interested in the estate. We further hold that although the IRD income tax and attorney's fees reduce the estate, they are not includible in the death tax fund deficiency so as to be apportionable to recipients of out of probate transfers.

Terry Littlejohn vs. Bd. of Public Utilities
W2001-00011-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: C. Creed Mcginley
This appeal arises from the personal injuries sustained by the Appellant as a result of an electrical shock he received while roofing a house in Henry County, Tennessee. The Appellant filed a complaint against the Appellee under the Governmental Tort Liability Act in the Circuit Court of Henry County. Following a bench trial, the trial court assessed thirty-five percent of the fault to the Appellant and sixty-five percent of the fault to the Appellee. The trial court found that the total amount of damages sustained by the Appellant was $25,000.00. The trial court reduced the total amount of damages by thirty-five percent which resulted in an award of damages to the Appellant in the amount of $16,250.00. The Appellant appeals the decision of the Circuit Court of Henry County assessing thirty-five percent of the fault to the Appellant and awarding damages in the amount of $16,250.00. For the reasons stated herein, we affirm in part and reverse in part the trial court's decision.