George Palmetree, et al. v. Jess Rivera and Jess Rivera d/b/a Construction Services
W2005-02363-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Chancellor W. Michael Maloan

The trial court entered a default judgment in favor of Plaintiffs in an action alleging breach of contract, fraud, and violations of the Tennessee Consumer Protection Act, and denied Defendant’s Rule 60.02 motion to set aside the judgment. We reverse and remand for further proceedings.

David Keen v. State of Tennessee
W2004-02159-CCA-R3-PD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Chris B. Craft

Capital Petitioner David Keen appeals as of right the judgment of the Shelby County Criminal Court denying his petition for post-conviction relief. Petitioner Keen pled guilty to first degree felony murder committed in the perpetration of the rape of eight-year-old Ashley Nicole (Nikki) Reed. See State v. Keen, 31 S.W.3d 196 (Tenn. 2000); State v. Keen, 926 S.W.2d 727 (Tenn. 1996). He was sentenced to death. On direct appeal, the petitioner’s conviction was affirmed, but the supreme court reversed and remanded the sentence of death after finding reversible error due to erroneous jury instructions. Keen, 926 S.W.2d at 736. On remand, the jury, again, imposed the penalty of death. Keen, 31 S.W.3d at 202. Our supreme court affirmed the sentence of death on direct appeal. Id. A pro se petition for post-conviction relief was filed on May 3, 2001, which was followed by the appointment of counsel and an amended petition on November 16, 2001. An evidentiary hearing was conducted and, on August 2, 2004, the post-conviction court denied relief and dismissed the petition. On direct appeal to this Court, the petitioner presents for our review the following claims: (1) whether the petitioner was denied a fair trial due to jury misconduct; (2) whether the petitioner received constitutionally effective assistance of counsel at his sentencing hearing; (3) whether the death sentence violates the holdings in Apprendi, Ring, or Jones; (4) whether the prosecutor’s discretion in seeking the death penalty violates Bush v. Gore; (5) whether the imposition of the death penalty is unconstitutional; and (6) whether imposition of the death penalty violates international
law. After a careful and laborious review of the record, this Court concludes that there is no error requiring reversal. Accordingly, the judgment of the post-conviction court is affirmed.

Jerry Joyner v. Personal Finance Corporation
W2005-02202-COA-R3-CV
Authoring Judge: Presiding Judge W. Frank Crawford
Trial Court Judge: Chancellor Ron E. Harmon

This is a summary judgment case. Appellant/Husband and his ex-wife entered into a marital dissolution agreement wherein the ex-wife was awarded the marital residence subject to the condition that should she choose to sell the property Appellant was then entitled to $20,000.00 from the net proceeds of the sale. The ex-wife refinanced the property and executed a Deed of Trust in favor of the Appellee. When ex-wife defaulted on her payments, Appellee foreclosed on the property. Appellant/Husband filed suit against the Appellee seeking enforcement of an equitable lien against the property. The trial court granted summary judgment in favor of the Appellee. We affirm.

Jeffrey L. Barnett v. City of Murfreesboro
M2005-00275-WC-R3-CV
Authoring Judge: Senior Judge Donald P. Harris
Trial Court Judge: Judge Royce Taylor

This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel in accordance with Tennessee Code Annotated section 50-6-225(e)(3) for hearing and reporting to the Supreme Court our findings of fact and conclusions of law. In this appeal, the
Employer asserts that the trial court erred in finding a heart attack suffered by the Employee arose
out of his employment with the City of Murfreesboro and in awarding medical benefits for the
implantation of intra-coronary stints that the employer alleges is treatment for a pre-existing
condition and not a work-related injury. We agree with the findings of the trial judge and, in
accordance with Tennessee Code Annotated §50-6-225(e)(2), affirm the judgment of the trial court.

State of Tennessee v. Jonathan Wesley Stephenson - Concurring/Dissenting
E2003-01091-SC-DDT-DD
Authoring Judge: Justice Adolpho A. Birch, Jr.
Trial Court Judge: Judge Ben W. Hooper, II

While I concur in part with the conclusion of the majority affirming Stephenson’s convictions, I respectfully dissent from that portion of the majority’s opinion concluding that the Sixth Amendment right to confrontation of witnesses and the state constitutional right to confront witnesses “face-to-face” does not apply to capital sentencing hearings. The Sixth Amendment provides: “In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.” U.S. Const. amend. VI. Similarly, Article I, section 9 of the Tennessee Constitution provides “[t]hat in all criminal prosecutions, the accused hath the right . . . to meet the witnesses face to face . . . .” It is disingenuous to argue that the sentencing phase of a capital murder case–tried before a jury–is not a critical part of a “criminal prosecution” covered by these provisions.1

State of Tennessee v. Jonathan Wesley Stephenson
E2003-01091-SC-DDT-DD
Authoring Judge: Justice Janice M. Holder
Trial Court Judge: Judge Ben W. Hooper, II

The appeal in this capital case arises from the resentencing of Jonathan Wesley Stephenson, who was convicted in 1990 of first degree murder and conspiracy to commit first degree murder for his role in the contract killing of his wife. Following the resentencing hearing, the jury imposed a sentence of death, and the Court of Criminal Appeals affirmed. Upon automatic appeal under Tennessee Code Annotated section 39-13-206(a)(1), we designated the following issues for oral argument:1 1) Do dual sentences of incarceration for conspiracy and death for first degree murder in this case violate double jeopardy; 2) Did the trial court err in admitting the prior testimony of two witnesses, Glen Brewer and Michael Litz; 3) Did the trial court err in not considering the defendant’s motion to suppress his statement to the police; 4) Did the trial court lack jurisdiction to resentence the defendant; and 5) Is the defendant’s death sentence comparatively proportionate and is the sentence valid under the mandatory review of Tennessee Code Annotated section 39-13-206(c)(1). Having carefully reviewed the record and relevant legal authority, we conclude that none of the errors alleged by the defendant warrants relief. With respect to issues not herein specifically addressed, we affirm the decision of the Court of Criminal Appeals. Relevant portions of that opinion are published hereafter as an appendix. Accordingly, the judgment of the Court of Criminal Appeals is affirmed. Tenn. Code Ann. § 39-13-206(a)(1); Judgment of the Court of Criminal Appeals Affirmed.
 

State of Tennessee v. Ernest Cunningham, Jr.
M2005-01718-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Mark J. Fishburn

The defendant, Ernest Cunningham, Jr., appeals his convictions for facilitation of sale of cocaine under .5 grams (Class D felony) and possession of .5 grams or more of cocaine with the intent to sell (Class B felony). The defendant received concurrent sentences of twelve years for the facilitation offense and thirty years for possession with intent to sell, as a career offender with a 60% release eligibility date. The sole issue on appeal is whether the evidence was sufficient to support the convictions. Our review reveals that the evidence was sufficient. The judgments of conviction are hereby affirmed.

State of Tennessee v. Edward Jankowski, Sr.
M2005-01251-CCA-R3-CD
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge Buddy D. Perry

The Defendant, Edward Jankowski, Sr., appeals from the sentencing decision of the Sequatchie County Circuit Court. The Defendant pled guilty to one count of incest. The victim was his eighteen-year-old daughter. Pursuant to the terms of the plea agreement, he received a six-year sentence as a Range I, standard offender, and the manner of service was to be determined by the trial court. Following a sentencing hearing, the trial court ordered the sentence to be served in the Department of Correction. On appeal, the Defendant argues that the trial court erred by ordering a sentence of total confinement rather than a less restrictive alternative. After review, the sentencing decision is affirmed.

State of Tennessee v. Mario Johnson
W2005-01052-CCA-R3-CD
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge Chris B. Craft

This is a direct appeal from convictions on a jury verdict of four counts of aggravated robbery. See Tenn. Code Ann. § 39-13-402. The Defendant was sentenced as a Range II, multiple offender to sixteen years for each conviction to be served consecutively in part for an effective thirty-two-year sentence. On appeal, the Defendant raises four issues: (1) the trial court erred in consolidating the Defendant’s two indictments for a single trial; (2) the admission of hearsay statements is plain error; (3) the trial court erred in failing to instruct the jury on the lesser-included offense of aggravated assault; and (4) the trial court’s imposition of consecutive sentences violated the Defendant’s constitutional rights pursuant to Blakely v. Washington, 542 U.S. 296 (2004). We affirm the judgments of the trial court.

State of Tennessee v. Cassandra Robinson
W2005-01500-CCA-R3-CD
Authoring Judge: Presiding Judge Gary R Wade
Trial Court Judge: Judge W. Mark Ward

The defendant, Cassandra Robinson, was convicted of conspiracy to commit aggravated robbery, aggravated robbery, and aggravated assault. The trial court imposed Range I, concurrent sentences of four years, nine years, and four years, respectively. In this appeal, the defendant asserts that the evidence was insufficient to support her convictions. The judgments of the trial court are affirmed.

James McClennon v. State of Tennessee
M2005-01123-CCA-R3-PC
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Cheryl A. Blackburn

The petitioner, James McClennon, appeals the denial of his petition for post-conviction relief in which he asserted various instances of ineffective assistance of counsel. A review of the record reveals support for the findings of the post-conviction court. We affirm.

State of Tennessee v. Robert L. Mitchell
M2005-01652-CCA-R3-CD
Authoring Judge: Presiding Judge Gary R Wade
Trial Court Judge: Judge Steve R. Dozier

The defendant, Robert L. Mitchell, was convicted of especially aggravated kidnapping, two counts of aggravated kidnapping, and assault. Later, the two aggravated kidnapping convictions were merged. The trial court sentenced the defendant as a violent offender to twenty-five years for the especially aggravated kidnapping, twelve years for the aggravated kidnapping, and eleven months and twenty-nine days for the assault. Because the kidnapping sentences are to be served consecutively, the effective sentence is thirty-seven years. In this appeal of right, the defendant claims that (1) the evidence is insufficient to support his kidnapping convictions; (2) the trial court erred by admitting evidence of prior bad acts; and (3) his sentence is excessive. The judgments of the trial court are affirmed.

State of Tennessee, ex rel., Sharon Denise Townsend v. Eric Wayne Williamson
W2004-02980-COA-R3-JV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Referee Claudia S. Haltom

This appeal concerns two related, but distinct, proceedings in Juvenile Court. One was a custody proceeding, and the other a contempt of court proceeding arising from a failure to comply with child support obligations. Separate docket numbers were assigned to each case. After a judgment was rendered in the contempt proceeding, the father filed a notice of appeal. Several months later, another judgment was rendered in the custody modification proceeding. No notice of appeal was filed for the custody modification proceeding. After the case was appealed to the Court of Appeals, the father obtained a consolidation order from the Juvenile Court. On appeal, the father argues only that the Juvenile Court erred in its custody order. Finding that neither of the two orders is final and appealable, we must dismiss the father’s appeal based upon a lack of jurisdiction and remand all proceedings to the Juvenile Court.

State of Tennessee v. Larry Payne
W2005-00679-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Joseph B. Dailey

A Shelby County Criminal Court jury convicted the appellant of four counts of aggravated robbery against two victims, and the appellant received an effective thirty-six-year sentence. In this appeal, the appellant claims (1) that the evidence is insufficient to support the convictions; (2) that the trial court erred by requiring Detention Response Team personnel to sit next to him in the courtroom and while he testified; and (3) that his sentences are excessive. After a thorough review of the record, we conclude that the four convictions should be merged into two convictions and that the case should be remanded for entry of corrected judgments consistent with this opinion. In all other respects, the judgments of the trial court are affirmed.

Monica D. Perry v. Gap, Inc.
M2004-02525-WC-R3-CV
Authoring Judge: William H. Inman, Sr. J.
Trial Court Judge: C. K. Smith, Chancellor
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Tennessee Supreme Court in accordance with Tennessee Code Annotated section 5-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The treating specialist found the Employee not to be impaired due to a pinched nerve in her neck, which was resolving. An independent medical examiner [IME] testified that she retained an 8 percent permanent partial disability impairment. The trial judge accepted the opinion of the IME and awarded the Plaintiff 2 percent permanent partial disability. We do not find that the evidence preponderates against the holding of the trial court. Accordingly, the judgment of the trial court is affirmed. 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 CORNELIA A. CLARK, J., joined and ROBERT E. CORLEW III, SP. J., filed a dissenting opinion. Richard C. Mangelsdorf, Jr. and Stephen B. Morton, Nashville, Tennessee, attorneys for Appellant, Gap Inc. William Joseph Butler and E. Guy Holliman, Lafayette, Tennessee, attorneys for Appellee, Monica Perry. MEMORANDUM OPINION The Employee alleged that in February 23 she suffered an injury to her neck and left shoulder, and in July and August 23 she suffered a gradual injury to her left and right hands, wrists and to both arms. She specifically alleged temporary total disability,1 and permanent partial disability, for which she sought workers' compensation benefits. The complaint was answered in course. The Employer disclaimed knowledge of gradually occurring injuries and "demanded strict proof of the Plaintiff's claimed entitlement to benefits" while admitting the occurrence of the February 26, 23 accident. Trial was held August 31, 24. The earlier filed depositions of doctors Thomas Tompkins and Walter Wheelhouse were considered by the trial judge, who, following a brief recess, filed a 24- page memorandum opinion emphasizing the testimony of the Employee and awarding her benefits for 2 percent vocational disability. The Employer appeals, asserting that: (1) the trial court erred in denying the Employer's motion to compel an independent medical exam of the Employee pursuant to Tennessee Code Annotated section 5-6-24(d)(1) and Rule 35.1 of the Tennessee Rules of Civil Procedure; (2) the evidence preponderates against the degree of vocational disability found by the trial court; and (3) the Employee is not entitled to a disability award pursuant to Tennessee Code Annotated section 5- 6-25(a) and the policies behind the Workers' Compensation Act. Appellate review is de novo on the record, accompanied by a presumption that the judgment is correct unless the evidence otherwise preponderates. Tenn. R. App. P. 13(c); Tenn. Code Ann. _ 5-6-225(e); Lollar v. Wal-Mart Stores Inc., 767 S.W.2d 143, 149 (Tenn. 1989). Discussion The Employee is twenty-seven years old, and a single mother of three children. She completed the eighth grade, and has no vocational or occupational skills. She was employed by the Employer when she was eighteen years old. In February 23, she testified that she injured her neck and shoulder during the course of her job in "wand and loading," which she described as loading the trailers with boxes of clothing, ranging in weight from 2 pounds to 5 pounds. She felt a sharp pain in her neck which ran through her shoulder. She was seen and treated by Dr. Tompkins on numerous occasions, but contends that no visit or treatment ever exceeded three minutes. She last saw Dr. Tompkins in August 23, but her pain and numbness continued, interfering with her ability to perform simple household tasks. She never complained at work about her condition. She never mentioned to a supervisor that she was hurting, explaining that if she "said anything she would be put out of work." She earns $13.89 per hour, with health insurance benefits. The Employee takes ibuprofen daily, but admitted she never asked her treating physician for 1 The Employee did not sign the complaint, and it was developed at trial that she lost no time from work, thus negating and refuting this portion of her claim. See Tenn. R. Civ. Pro. 11(3). -2-

Harlan B. Embry v. United Parcel Service, Inc., Liberty Mutual Fire Insurance Company, and the Administrator of the Tennessee Second Injury Fund
M2004-02395-WC-R3-CV
Authoring Judge: Special Judge Robert E. Corlew
Trial Court Judge: Chancellor Hon. Richard Dinkins

This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Tennessee Supreme Court in accordance with the provisions of Tennessee Code Annotated section 50-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The Employee has appealed the findings of the trial court, which determined that the Employee is entitled to recover benefits for a permanent partial disability rating of 12.5% apportioned to the right upper extremity and no disability to the left upper extremity, both cubital tunnel injuries. The trial court also found no compensable injury accorded to the Employee's claim for benefits due to his bilateral carpal tunnel syndrome. Further, the Employee appeals from the failure of the trial court to award discretionary costs to him pursuant to the provisions of Rule 54.04 of the Tennessee Rules of Civil Procedure. Finally, the Employee has asked the Panel to consider post-judgment facts and render a decision with regard to interest. We hold that the judgment should be affirmed in part, reversed in part, and remanded.

In Re. Thomas P.
E2005-01367-COA-R3-PT
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Jeffrey D. Rader

The trial court terminated the parental rights of Rene V. (“Mother”) to her child, Thomas P. (DOB: September 27, 2000),1 upon finding, by clear and convincing evidence, that grounds for terminating her parental rights existed and that termination was in the best interest of the child. Mother appeals.  We affirm.

State of Tennessee v. Chad Michael Knight
M2005-00779-CCA-R3-CD
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge Michael R. Jones

The Appellant, Chad Michael Knight, appeals the sentencing decision of the Montgomery County Circuit Court. Following a jury trial, Knight was convicted of reckless endangerment, a Class A misdemeanor, and aggravated child abuse, a Class A felony, and sentenced to an effective term of twenty years, eleven months, and twenty-nine days in confinement. On appeal, Knight argues that the trial court erred in: (1) failing to apply various sentencing considerations which would have served to mitigate his sentence, as authorized by Tennessee Code Annotated section 40-35-113(13) (2003); and (2) refusing to sentence him as an especially mitigated offender in accordance with Tennessee Code Annotated section 40-35-109 (2003). After review of the record, we affirm the judgment of the trial court.

Jerry Duke, d/b/a Moscow Manor Apartments v. Browning-Ferris Industries of Tennessee, Inc., et al.
W2005-00146-COA-R3-CV
Authoring Judge: Presiding Judge W. Frank Crawford
Trial Court Judge: Judge Jon Kerry Blackwood

Plaintiff/Appellant filed suit against Defendants/Appellees claiming that Defendants/Appellees had violated the Tennessee Trade Practices Act, the Tennessee Consumer Protection Act, and the common law doctrines of good faith and fair dealing, and unjust enrichment in its contracting for commercial waste hauling services in the Memphis area. The trial court granted summary judgment in favor of Defendants/Appellees on both the statutory violation claims and the common law claims. We affirm.

James Jackson v. Tennessee Department of Correction, et al.
W2005-02239-COA-R3-CV
Authoring Judge: Judge Alan E. Highers
Trial Court Judge: Chancellor Martha B. Brasfield

A prisoner in the custody of the Tennessee Department of Correction filed a pro se petition for common law writ of certiorari in the trial court seeking to contest the prison disciplinary board’s findings. The department filed a motion to dismiss for lack of subject matter jurisdiction, citing the petition’s lack of notarization, its failure to state that it was the first application for the writ, and the prisoner’s failure to file it within sixty (60) days of the administrative action. The trial court granted the department’s motion to dismiss. The prisoner filed a motion for a new trial asserting that he complied with Tennessee Rule of Civil Procedure 5.06. The trial court denied the motion. The prisoner timely filed an appeal to this court. We affirm the dismissal of the petition.

Tommy Dixon v. State of Tennessee
W2005-02921-CCA-R3-HC
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge R. Lee Moore Jr.

The Petitioner, Tommy Dixon, appeals the trial court's denial of his petition for habeas corpus relief. The State has filed a motion requesting that this Court affirm the trial court's denial of relief pursuant to Rule 20, Rules of the Court of Criminal Appeals. Petitioner has failed to allege any ground that would render the judgments of conviction void. Accordingly, we grant the State's motion and affirm the judgment of the lower court.

Ryan James Moran v. State of Tennessee
W2006-00242-CCA-R3-HC
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge Joseph H. Walker, III

The Petitioner, Ryan James Moran, appeals the lower court’s denial of his petition for habeas corpus relief. The State has filed a motion requesting that this Court affirm the trial court pursuant to Rule 20, Rules of the Court of Criminal Appeals. The Petitioner has failed to allege any ground that would render the judgments of conviction void. Accordingly, we affirm the trial court’s dismissal.

Steven Ray Chance (Aryan Ray Garrett) v. David G. Mills v. State of Tennessee
W2006-00243-CCA-R3-HC
Authoring Judge: Judge J. C. McLin
Trial Court Judge: Judge Joseph H. Walker, III

The Petitioner, Steven Ray Chance, appeals the trial court’s denial of his petition for habeas corpus relief. The State has filed a motion requesting that this Court affirm the trial court pursuant to Rule 20, Rules of the Court of Criminal Appeals. The State’s motion is granted. The judgment of the trial court is affirmed.

Estate of Dennis McFerren v. Infinity Transport, LLC
W2004-02278-SC-WCM-CV
Authoring Judge: Special Judge Clayburn Peeples
Trial Court Judge: Chancellor Arnold Goldin

This workers’ compensation appeal has been referred to and heard by the Special Workers’ Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated section 50-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. We find that the trial court did not have jurisdiction over the defendant in the first lawsuit due to insufficient service of process pursuant to Tennessee Rule of Civil Procedure 4.03. The doctrine of prior suit pending does not apply, and the second lawsuit was not barred. The trial court erred in setting aside the default judgment against the defendant and dismissing the plaintiff’s complaint. Accordingly, we reverse the judgment of the trial court and remand the case to the trial court for reinstatement of the default judgment against the defendant.

Brooke Rathnow b/n/f Rich and Diane Rathnow v. Knox County, et al. - Concurring
E2005-02515-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Dale C. Workman

I agree completely with Judge Lee’s well-thought-out opinion. I write separately to emphasize what I believe is the linchpin of the reasoning in this case.