State of Tennessee v. Tony Levelle Ford
E2003-01725-CCA-R3-CD
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Judge D. Kelly Thomas, Jr.

The defendant, Tony Levelle Ford, entered guilty pleas to aggravated burglary and conspiracy to commit aggravated robbery. The Blount County trial court ordered the defendant to serve concurrent five-year sentences in confinement as a Range I standard offender. On appeal, the defendant contends his sentences are excessive. We affirm the judgments of the trial court.

Wanda Gail Sandlin v. George Samuel Sandlin
M2003-00775-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Chancellor Vernon Neal

Wife filed for divorce alleging irreconcilable differences or, in the alternative, that Husband was guilty of inappropriate marital conduct. The trial court granted Wife an absolute divorce on the basis of Husband's stipulated inappropriate marital conduct. The trial court further ordered a distribution of marital property and debt, awarded wife alimony in futuro and attorney's fees, and required Husband to maintain a life insurance policy to secure his alimony obligation. Husband appeals. We affirm the award of alimony in futuro, distribution of marital property and debt, and the award of attorney's fees as alimony in solido. However, we vacate the requirement to provide life insurance and remand.

State of Tennessee v. Cornell Marley Hyder
M2003-00833-CCA-R3-CD
Authoring Judge: Judge Jerry L. Smith
Trial Court Judge: Judge J. O. Bond

The appellant, Cornell Marley Hyder, also known as Cornbread, was convicted by a jury of one count of rape of a child, one count of rape, one count of aggravated sexual battery, and one count of sexual battery, for which he received an effective seventeen-year sentence. In this direct appeal, the appellant presents the following issues for review: (1) whether the trial court erred in refusing to allow testimony pursuant to Tennessee Rule of Evidence 412; (2) whether the trial court erred in denying the motion to suppress; (3) whether the trial court erred in denying the motion for directed verdict; (4) whether the trial court erred in failing to charge the jury on election of offenses; (5) whether the evidence established the venue of the offense on the charge of rape; and (6) whether the evidence was sufficient to support the verdict. We affirm the convictions and sentences, but remand for correction of the judgment forms.

State of Tennessee v. Roy Chisenhall
M2003-00956-CCA-R3-CD
Authoring Judge: Judge Jerry L. Smith
Trial Court Judge: Judge James Curtis Smith

The appellant, Roy Chisenhall, was convicted by a jury of aggravated sexual battery. After a sentencing hearing, he was sentenced to eight years and nine months and, as recommended by the jury, assessed a $25,000 fine. The trial court denied his motion for new trial. In this direct appeal, the appellant challenges the sufficiency of the evidence, the jury instruction on flight, the jury instruction on aggravated sexual battery, and the absence of a jury instruction on corroboration of accomplice testimony. After a review of the record and applicable authorities, we affirm the decision of the trial court.

Kay Gilliam Dulin v. Michael Jay Dulin
W2002-02758-COA-R3-CV
Authoring Judge: Presiding Judge W. Frank Crawford
Trial Court Judge: Judge George H. Brown, Jr.

Father of minor child appeals the trial court’s order finding him in contempt of court, assessing arrearages of child support and attorney fees on the ground that the court lacked personal jurisdiction in the original divorce action and all subsequent proceedings. We affirm.
 

State of Tennessee v. Eric T. Armstrong
M2003-00762-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Donald P. Harris

The appellant, Eric T. Armstrong, was convicted by a jury in the Williamson County Circuit Court of aggravated robbery and especially aggravated kidnapping. Following a hearing, the trial court sentenced the appellant to an effective sixteen year sentence in the Tennessee Department of Correction. On appeal, the appellant challenges the sufficiency of the evidence, the denial of the motion to suppress Lara Carter's identification of the appellant, the constitutionality of the jury venire, and his conviction of especially aggravated kidnapping under State v. Anthony, 817 S.W.2d 299 (Tenn. 1991). Upon review of the record and the parties' briefs, we affirm the judgments of the trial court.

State of Tennessee v. Carter Masters
M2003-00305-CCA-R3-CD
Authoring Judge: Presiding Judge Gary R Wade
Trial Court Judge: Judge Leon C. Burns, Jr.

The defendant, Carter Masters, was convicted by a jury of two counts of especially aggravated kidnapping, aggravated burglary, and aggravated assault. The trial court imposed concurrent sentences of twenty years for each kidnapping, four years for the burglary, and three years for the aggravated assault. In this appeal of right, the defendant asserts that he was denied due process because the mental health expert retained by trial counsel was incompetent. In the alternative, he argues that trial counsel was ineffective for failing to select a competent psychologist. The defendant also asserts that his due process rights were offended by the state's cross-examination of the defense psychologist. The judgments of the trial court are affirmed.

Rita Werne v. Robert Sanderson, et al.
W2002-02118-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Chancellor Walter L. Evans

The trial court found Plaintiff was the owner of disputed stock, but had failed to prove monetary damages. We affirm in part and remand for further proceedings regarding damages.

Parris Lester v. Cracker Barrel Old Country Store, Inc.
M2003-02409-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Judge John D. Wootten, Jr.

This appeal concerns a restaurant's liability for the conduct of an employee who verbally abused and bumped a customer. The customer filed suit against the restaurant in the Circuit Court for Wilson County seeking damages for intentional infliction of emotional distress. The trial court granted the restaurant a summary judgment and the customer appealed. The sole issue on appeal is whether the employee was acting within the scope of his employment when he harassed and bumped the customer. Because we find as a matter of law the employee was not acting within the scope of his employment, we affirm the summary judgment.

State of Tennessee v. Salvatore Brunetti
M2003-00476-CCA-R3-CD
Authoring Judge: Presiding Judge Gary R Wade
Trial Court Judge: Judge Allen W. Wallace

The defendant, Salvatore Brunetti, was convicted of voluntary manslaughter. The trial court imposed a sentence of five years in the Department of Correction. In this appeal, the defendant asserts that the trial court erred by denying an alternative sentence. The judgment of the trial court is affirmed.

Robert L. Drew v. State of Tennessee
M2003-00593-CCA-R3-CD
Authoring Judge: Presiding Judge Gary R. Wade
Trial Court Judge: Judge Steve R. Dozier

The petitioner, Robert L. Drew, appeals the denial of his petition for post-conviction relief. The issue is whether he was denied the effective assistance of counsel. The judgment of the post-conviction court is affirmed.

State of Tennessee v. Jamie Crawford
E2003-02192-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge R. Jerry Beck

Following a revocation hearing, the trial court revoked the probation of Defendant, Jamie Michelle Crawford, and ordered her to serve the remainder of her sentence in confinement. Defendant does not appeal the revocation of her probation but argues that the trial court erred in not imposing a sentence of split confinement. After a thorough review of the record in this matter, we affirm the judgment of the trial court revoking probation and ordering Defendant to serve her sentence in confinement.

Jerry Dickerson v. State of Tennessee
E2003-02854-CCA-R3-PC
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Robert E. Cupp

Petitioner, Jerry W. Dickerson, appeals from the trial court's dismissal of his pro se petition for writ of habeas corpus. Petitioner alleges that his conviction and sentence are void because the trial record was improperly authenticated and contained inaccuracies. Following a review of the record in this matter, we affirm the judgment of the trial court.

State of Tennessee v. Billy Gene Rich
W2003-01495-CCA-R3-CD
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge Roger A. Page

The Appellant, Billy Gene Rich, was convicted of driving under the influence (DUI), second offense, and was sentenced to serve eleven months and twenty-nine days in jail. On appeal, Rich argues that: (1) the evidence is insufficient to support his conviction and (2) his sentence is excessive. After review, the conviction and sentence are affirmed.

State of Tennessee v. David Hester
E2003-01507-CCA-R3-CD
Authoring Judge: Presiding Judge Gary R Wade
Trial Court Judge: Judge Richard R. Vance

The defendant, David Hester, pled guilty to statutory rape. The trial court imposed a one-year sentence to be served on supervised probation and directed community service. In this appeal, he asserts that the trial court erred by denying judicial diversion. The judgment of the trial court is affirmed.

David Hartsell v. State of Tennessee
E2003-03080-CCA-R3-PC
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Lynn W. Brown

The petitioner, David Johnson Hartsell, appeals the order of the Circuit Court for Washington County dismissing his post-conviction relief petition. 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. The petition fails to present a cognizable claim for relief. Accordingly, the State's motion is granted and the judgment of the trial court is affirmed.

Robert S. Shipley v. Ryder Truck Rentals, Inc.
E2003-01346-WC-R3-CV
Authoring Judge: H. David Cate, Sp. J.
Trial Court Judge: Richard Ladd, Chancellor By Designation
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 its findings of fact and conclusions of law. In this appeal the employer complains that the trial court was in error (1) by allowing the surprise live testimony of Dr. C. M. Salekin contrary to the agreement of the parties and the court's prior orders; and (2) in awarding the employee 1 percent permanent disability to the left eye when the employee was legally blind in the left eye prior to the alleged injury and plaintiff failed to prove any loss of use. We disagree and affirm the trial court on these two issues. The employer also complains that the trial court erred in awarding prejudgment interest. We agree and reverse. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Chancery Court Affirmed in Part, Reversed in Part and Remanded H. DAVID CATE, SP. J., in which WILLIAM M. BARKER, J., and ROGER E. THAYER, Sp. J., joined. Daniel C. Todd, Nashville, Tennessee, for Appellant, Ryder Truck Rental, Inc. David H. Dunaway, LaFollette, Tennessee, for Appellee, Robert S. Shipley MEMORANDUM OPINION I. Factual and Procedural Background The employee, Robert S. Shipley, was fifty-eight years old at the time of trial. He went to the eighth grade in school. He drove a truck, farmed and became a long-haul truck driver. He has been employed as a long-haul truck driver during substantially all of his employed years. He became employed by Ryder Truck Rental, Inc., the employer, in 1998. The employer leased its trucks to Universal Furniture, and the employee began hauling furniture in March 1998. In May 1999, the employee sustained a detached retina of the left eye, while unloading furniture. There was no workers' compensation claim made for this injury. In June 1999, the retina of his left eye again detached. It was reattached surgically on July 3, 1999, by Dr. John Hoskins, an ophthalmologist. On January 1, 2, Dr. Hoskins did a follow-up procedure on the left eye, amounting to a removal of silicone oil from the eye. In February 2, he had another left eye recurrent retinal detachment, which was repaired surgically on February 28, 2. After this surgery on July 24, 2, the vision in his left eye tested at 2/4, which was considered to be legally blind.1 Although he was driving a truck for the employer, the lack of vision would have prohibited him from having a commercial driver's license. On August 1, 2, the employee was driving a truck for the employer when the truck was struck by another vehicle traveling the wrong way on Interstate 75 near Chattanooga, Tennessee. The employee observed the injuries of the other driver and watched as he died. He sustained a head injury on the left-hand side of the door and his eye started quivering. The employee was seen at the Cleveland Community Hospital emergency room the day of the accident. While there, approximately four hours after the accident, the employee had a diastolic blood pressure reading of 113. A normal diastolic reading would be below 85 or 8, depending on the doctor. He has suffered from hypertension for several years. The employee worked approximately three weeks in September 2, but has not worked since. Since the accident the employee has been treated by the following physicians: Dr. Luis C. Pannocchia, family practice doctor; Dr. John C. Hoskins, ophthalmologist; and Dr. Kelley Walker, a psychiatrist. He has been evaluated by the following: Dr. Ben Bursten, a psychiatrist; Dr. C.M. Salekin, a neurologist; and Dr. Norman E. Hankins, a vocational evaluator. The vision in his left eye has decreased since the accident from 2/4 and reading the larger "E" on the chart to counting fingers at two feet and not being able to read the larger "E" on the chart. After this cause was commenced, a scheduling order was entered on May 29, 22, which provided that the parties would disclose their Rule 26 experts and statements and no expert would 1 The employee had a detached retina of the right eye but he has normal vision in that eye. -2-

State of Tennessee v. Donald Keel
W2003-00638-CCA-R3-CD
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge Clayburn L. Peeples

The Appellant, Donald Keel, was convicted in the Gibson County Circuit Court of aggravated
perjury, felon in possession of a handgun, and assault. Keel’s sentence for aggravated perjury was imposed consecutively to his concurrent sentences for unlawful weapon possession and assault. On appeal, he raises two issues for our review: (1) whether the evidence is sufficient to support his conviction for aggravated perjury and (2) whether consecutive sentencing is proper. After review of the record, we affirm the conviction and subsequent sentencing decision.

State of Tennessee, et al., v. Jamie Burnette, et al.
M2003-01742-COA-R3-PT
Authoring Judge: Judge William B. Cain
Trial Court Judge: Judge Charles F. Crawford

This appeal involves the juvenile court's termination of parental rights to two children, A.L.B. (d.o.b. 10/25/96), and B.L.B. (d.o.b. 12/01/98). Appellant argues that the trial court's findings regarding abandonment of the children, persistent conditions, and the children's best interests are unsupported by clear and convincing evidence. We affirm the trial court.

John McVoy v. Mary Ann Parks
M2003-01841-COA-R3-CV
Authoring Judge: Presiding Judge William C. Koch, Jr.
Trial Court Judge: Chancellor Tom E. Gray

This appeal involves an order of protection. After several public confrontations with his former girlfriend, the petitioner sought an order of protection from the Chancery Court for Sumner County. The trial court granted the order of protection, and the former girlfriend appealed to this court. Because the evidence does not preponderate against the trial court's decision, we affirm.

Kevin Demers v. Walter Whittenburg
M2003-00184-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Judge John H. Gasaway, III

This case involves two Rule 12.02(6) motions to dismiss converted to motions for summary judgment through the filing of additional affidavits with Plaintiff’s response to these motions. Although the trial court dismissed all claims against Defendants for failure to state a claim under Rule 12.02(6), we must review the evidence using a Rule 56 motion for summary judgment standard. Plaintiff alleged numerous business torts, conspiracy, intentional infliction of emotional distress, and defamation in this action against Defendants. However, Plaintiff failed to provide any evidence from which a jury could return a verdict in favor of Plaintiff on any count alleged. The trial court also granted Rule 11 sanctions against Plaintiff. The judgment of the trial court is affirmed, but on summary judgment grounds.

Kevin Demers v. Walter Whittenburg - Concurring
M2003-00184-COA-R3-CV
Authoring Judge: Presiding Judge William C. Koch, Jr.
Trial Court Judge: Judge John H. Gasaway, III

While I concur with the decision to affirm the trial court’s dismissal of Mr. Demers’s claims in this case, I write separately to point out that the outcome may very well have been different had we employed the standard customarily used to review orders granting a Tenn. R. Civ. P. 12.02(6) motion to dismiss. However, by using affidavits to oppose the motion to dismiss, Mr. Demers has succeeded in converting the Tenn. R. Civ. P. 12.02(6) motion to a motion for summary  Thus, rather than reviewing Mr. Demers’s amended complaint to determine whether it states claims upon which relief can be granted, we need only determine whether, based on the undisputed facts, the defendants have demonstrated that they are entitled to a judgment as a matter of law.

Cheryl O'Brien v. Rheem Manufacturing Company
M2003-00530-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Judge John H. Gasaway, III

In this appeal an unsuccessful plaintiff seeks review of a jury verdict approved by the trial court, in favor of the defendant manufacturer. We affirm.

Dana Friedenstab v. Martha Short
M2003-00603-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Judge Donald P. Harris

The plaintiffs bring this appeal from the trial court’s summary judgment in favor of the defendant. We affirm.

Dana Friedenstab, et al., v. Martha Short - Dissenting
M2003-00603-COA-R3-CV
Authoring Judge: Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Donald P. Harris

The majority has determined that summary judgment was proper because the plaintiff failed to establish that the defendant owed her a duty and that the plaintiff was responsible for no less that 50% of her own injuries. I respectfully disagree.