Roger Raymond Desmarais v. The Bailey Company,
M2002-02637-WC-R3-CV
Authoring Judge: Joe C. Loser, Jr., Sp. J.
Trial Court Judge: C. K. Smith, 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. In this appeal, the employee insists the trial court erred in dismissing his claim. As discussed below, the panel has concluded the evidence fails to preponderate against the findings of the trial court. Tenn. Code Ann. _ 5-6-225(e) (22 Supp.) Appeal as of Right; Judgment of the Chancery Court Affirmed JOE C. LOSER, JR., SP. J., in which JANICE M. HOLDER, J., and JAMES L. WEATHERFORD, SR. J., joined. Michael W. Ferrell, Mt. Juliet, Tennessee, for the appellant, Roger Raymond Desmarais D. Andrew Saulters, Nashville, Tennessee, for the appellee, The Bailey Company Paul G. Summers, Attorney General & Reporter, and E. Blaine Sprouse, Assistant Attorney General, Nashville, Tennessee, for the appellee, Second Injury Fund MEMORANDUM OPINION The employee or claimant, Mr. Desmarais, initiated this civil action to recover workers' compensation benefits. The employer, The Bailey Company, and the Second Injury Fund denied liability. After a trial on the merits, the trial court dismissed the claim for insufficient proof of a compensable injury by accident. The claimant has appealed. 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 record to determine where the preponderance lies. Galloway v. Memphis Drum Serv., 822 S.W.2d 584, 586 (Tenn. 1991). The claimant began working for the employer in January 2 as a brick mason. He alleges that he felt back pain at work on April 24, 2, while lifting a cover on a forklift. There were no witnesses to the incident. The claimant received treatment from two different doctors, but continues to have back pain. Medical restrictions prevent him from returning to work for the employer. The claimant has a history of back problems. He suffered an injury in 1985, while working for another employer in Massachusetts. His workers' compensation claim was settled for $16,.. In May 1999, he suffered a second back injury for which he did not seek workers' compensation benefits. Diagnostic testing revealed a large herniated disc at L5-S1 following the 1999 injury. The record contains conflicting medical testimonyas to whether the claimant's present injury is work related. Dr. Thomas O'Brien, who treated the claimant, reported that the claimant did not inform him of the claimant's injuries of 1985 or 1999, when the medical history was taken. In addition, after comparing an MRI that was ordered in May 1999 with one ordered by Dr. Daniel McHugh in May 2, Dr. O'Brien testified that the reports of the MRIs were essentially the same and that there was no anatomic change revealed by comparing the two reports. Dr. David Gaw, an examining physician, opined that the claimed injury probably was causally related to the work the claimant was performing for the employer. However, Dr. Gaw was unaware of the claimant's 1999 injury. Moreover, when Dr. Gaw compared the two MRI reports, he agreed there was no significant difference between the two. Dr. Gaw also conceded that there were inconsistencies in the history given by the claimant. The claimant contends the trial court should have found his injury to be work related based upon medical testimony by Dr. Gaw that there could be some undetected nerve damage. The employer takes the employee with all pre-existing conditions, and cannot escape liability when the employee, upon suffering a work-related injury, incurs disability far greater than if the employee had not had the pre-existing conditions; but if work aggravates a pre- existing condition merely by increasing pain, there is no injury by accident. Kellerman v. Food Lion, 929 S.W.2d 333, 335 (Tenn. 1996) To be compensable, the pre-existing condition must be advanced, there must be an anatomic change in the pre-existing condition, or the employment must cause an actual progression of the underlying disease. Sweat v. Superior Industries, Inc., 966 S.W.2d 31, 32 (Tenn. 1998). From our independent examination of the record, the evidence fails to preponderate against the trial court's finding that the claimant did not suffer a compensable injury while working for the employer, as claimed. The finding was largely based on the claimant's lack of credibility. The claimant further contends the trial court erred in rejecting his testimony and accepting the testimony of medical experts that he gave them an incomplete history. The trial court explicitly found the claimant to be lacking in credibility. Where the trial judge has seen and heard the -2-

Quincy Henderson v. State of Tennessee
W2002-02541-CCA-R3-PC
Authoring Judge: Judge J. Curwood Witt, Jr.
Trial Court Judge: Judge W. Otis Higgs, Jr.

The petitioner, Quincy Henderson, appeals the Shelby County Criminal Court’s dismissal of his post-conviction petition, in which he claimed that his second degree murder conviction was constitutionally infirm because of ineffective assistance of trial counsel. Upon our review of the record, the parties’ briefs, and the applicable law, we affirm the denial of post-conviction relief.

State of Tennessee v. Thelisa Emery and Maurice Emery
W2002-02698-CCA-R3-CD
Authoring Judge: Judge J. Curwood Witt, Jr.
Trial Court Judge: Judge Clayburn L. Peeples

The defendants, Thelisa Emery and Maurice Emery, sister and brother, were each convicted in a joint jury trial of possession with intent to sell .5 grams or more of cocaine, possession of marijuana, and possession of drug paraphernalia. On appeal, Thelisa Emery claims that the convicting evidence is insufficient and that the trial court erred in not severing the defendants’ trials, in allowing testimony about Thelisa Emery’s use of cocaine, in allowing evidence of her prior sale of cocaine, and in instructing the jury as to her guilt via criminal responsibility for the acts of Maurice Emery. Maurice Emery raised some of the same issues, but because he failed to file a timely motion for new trial, appellate review of his convictions is limited to the sufficiency of the convicting evidence. Discerning no reversible error with respect to either defendant, we affirm the judgments of the trial court.

Ricco Saine v. State of Tennessee
W2002-02805-CCA-R3-PC
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge W. Otis Higgs, Jr.

Aggrieved that the lower court denied post-conviction relief following an evidentiary hearing, the petitioner, Ricco Saine, appeals and claims that his aggravated burglary conviction resulted from ineffective assistance of counsel and an involuntary guilty plea. We affirm the denial of post-conviction relief.

Anthony D. McDaniel, pro se., v. Bruce Westbrooks
W2003-00801-CCA-R3-CO
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Joseph H. Walker, III

The Petitioner, Anthony D. McDaniel, 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. The Petitioner fails to assert a cognizable claim for which habeas corpus relief may be granted. Accordingly, the State's motion is granted and the judgment of the trial court is affirmed.

State of Tennessee v. James Stacy Carroll
W2003-01182-CCA-R3-CD
Authoring Judge: Judge J. Curwood Witt, Jr.
Trial Court Judge: Judge C. Creed McGinley

The defendant, James Stacy Carroll, appeals from his Carroll County Circuit Court conviction of driving a vehicle in violation of a motor vehicle habitual offender order. He challenges the sufficiency of the convicting evidence. We hold that the evidence is sufficient to support the conviction and affirm the conviction.

State of Tennessee v . Sandy Marie McKay
M2002-03066-CCA-R3-CD
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge Cheryl A. Blackburn

The defendant, Sandy Marie McKay, pled guilty to attempted aggravated child neglect, a Class B felony. After a hearing, the trial court sentenced the defendant as a Range I standard offender to nine years in the Department of Correction. The defendant now appeals, contesting both the length and manner of service of her sentence. We affirm the judgment of the trial court.

In Re: The Estate of Ollie McCord; Joann Heinrich v. Helen Brooks
M2003-00175-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Judge Frank G. Clement, Jr.

This is a will contest. The will disinherited two of the decedent's five living children and the one child who had predeceased her. One of the disinherited children contested the will, asserting that the decedent did not have the mental capacity to execute a valid will. Four years prior to the will's execution, the decedent had been diagnosed with dementia, a progressive mental disorder. Based on witness testimony, the trial court found that, on the date the will was executed, the decedent had the mental capacity to execute the will. The will was admitted into probate. The will contestant appeals. In deference to the trial court's determinations of credibility, and in light of the weight of the evidence demonstrating capacity, we affirm.

Ralph Sasser v. Quebecor Printing,(USA) Corp., D/B/A Quebecor Printing Clarkesville
M2003-00287-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Judge Ross H. Hicks

This is a case involving an alleged hostile work environment based on disability. The employee worked in the maintenance department of a large printing facility. He had an on-the-job accident which resulted in the amputation of his leg. To accommodate his disability, the employer created a clerical position for him. The employee's work space was a "community desk" located in the maintenance area, an area to which numerous employees had regular access. The employee reported to the employer several incidents of alleged harassment, such as grease under the desk, lunch residue being left on the desk, dirty footprints in the desk's chair, and his computer monitor defaced with a profane statement. The employer moved the employee to a private office, and there were no further incidents. The employee filed a complaint alleging, inter alia, a hostile work environment based on disability, his amputated leg. The trial court granted summary judgment in favor of the employer. We affirm, finding that the incidents do not amount to harassment, and that there is no evidence that the conduct was either directed at the employee or linked to his disability.

State of Tennessee v. David Sonnemaker
E2003-01402-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Rebecca J. Stern

The Defendant, David W. Sonnemaker, appeals from the Hamilton County Criminal Court's revocation of his probation that he received for his guilty plea to sexual battery. The Defendant contends that: (1) he did not receive effective assistance of counsel at his probation revocation hearing; and (2) he was not provided adequate notice of the probation violation or given an opportunity to be heard. We affirm the lower court's judgment.

Wade Nance v. State Industries,
M2002-01762-WC-R3-CV
Authoring Judge: Allen W. Wallace, Sr. J.
Trial Court Judge: Leonard W. Martin, 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. Section 5-6-225 (e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. This matter was initially tried by the trial court on November 29, 1999, and the trial court found in favor of employer/defendant State Industries due to employee's failure to use a mandated safety procedure. On appeal, the Workers' Compensation Panel articulated a new four-prong standard to be applied when employers assert the affirmative defense of willful failure or refusal to use a safety appliance. This case Wade Nance v. State Industries, Inc. and ITT Hartford Insurance Co., 33 S.W.3d 222 (Tenn. 2). The four prong test enumerated is as follows: (1) at the time of the injury the employer had in effect a policy requiring the employee's use of a particular safety devise; (2) the employer carried out strict, continuous and bona fide enforcement of the policy; (3) the employee had actual knowledge of the policy, including a knowledge of the danger involved in its violation, through training provided by the employer; and (4) the employee willfully and intentionally failed or refused to follow the established policy requiring use of the safety appliance. The panel concluded that the employer had carried its burden of proof on elements (1), (3) and (4), and remanded the case for a new trial on element (2), all as set out above. On July 15, 22, the case was tried again before the same judge and the court determined State Industries, employer, had satisfied its burden of proof on this issue, i.e. the employer carried out a strict, continuous and bona fide enforcement policy. As discussed below, the panel has concluded the evidence does not preponderate against the trial court's finding and we affirm. Tenn. Code Ann. _ 5-6-225(e) (2 Supp.) Appeal as of Right; Judgment of the Chancery Court Affirmed ALLEN W. WALLACE, SR. J., in which ADOLPHO A. BIRCH, JR., J. and Joe C. Loser, Jr., Sp. J., joined. Donald D. Zuccarello, Nashville, Tennessee and Marcia D. McShane, Nashville, Tennessee, for appellant, Wade Nance Cynthia Debula Baines, Nashville, Tennessee, John Thomas Feeney, Nashville, Tennessee, and Shannon Elisabeth Poindexter, Nashville, Tennessee, for appellees, ITT Hartford Insurance Co. and State Industries, Inc. MEMORANDUM OPINION FACTS On June 7, 1998, complainant, employee, while performing his duties for employer as a greaser and oiler, suffered a fractured right ankle. Employee had positioned himself on a ladder approximately four to five feet off the floor and was attempting to grease a turn-roller machine located in the employer's paint shop. Another employee unexpectedly activated the turn-roller, causing the employee to fall, injuring his ankle. Employer required lock-out/ tag out safety procedure, and employee failed to use the procedure. The purpose of the lock- out/tag out procedure is to prevent a machine from being activated while being cleaned or otherwise maintained. Employer had such a safety procedure in their training manual which was disseminated to its employees. They further had training classes, and employee had received training on this procedure. Evidence in this case indicated some employees did not use this safety procedure even though they had a device on their person to initiate the procedure. Employer had in place a procedure for disciplinary violations ranging from a written reprimand to termination. ANALYSIS 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) (22 Supp.). The reviewing court is required to conduct an independent examination of the record to determine where the preponderance of the evidence lies.

Cinderella Ferrell Osborne v. Mountain Life Insurance Company
E2002-01023-SC-R11-CV
Authoring Judge: Justice E. Riley Anderson
Trial Court Judge: Judge John K. Wilson

We granted review to determine whether the defendant credit life insurance company was estopped from relying on policy language which excluded coverage if an insured received medical treatment for and died from a disease within six months of the date of coverage. The trial court granted summary judgment to the credit life insurance company based on the policy exclusion. The Court of Appeals reversed, holding that the defendant was estopped from relying on the policy exclusion and ordering payment of the policy benefits to the plaintiff, widow of the insured. After reviewing the record and applicable authority, we conclude that the trial court correctly granted summary judgment for the defendant and that the Court of Appeals erred in holding that the defendant was estopped from relying on the policy exclusion. We therefore reverse the judgment of the Court of Appeals and reinstate the judgment of the trial court.

State of Tennessee v. Tonya Jennings
M2002-01190-SC-R11-CD
Authoring Judge: Justice William M. Barker
Trial Court Judge: Judge Steve R. Dozier

In a bench trial, the defendant was found not guilty by reason of insanity of the charge of stalking. Following her release from judicial hospitalization, she moved to have her public records in this case expunged under Tennessee Code Annotated section 40-32-101(a)(1). Because the pertinent statutory language only provides for expungement upon "a verdict of not guilty returned by a jury," we find that the defendant is not entitled to expungement and affirm the judgment of the Court of Criminal Appeals.

Harold Woodroof, pro se v. State of Tennessee
M2003-01020-CCA-R3-PC
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge J. Randall Wyatt, Jr.

The Petitioner, Harold Woodroof, appeals the trial court's denial of his petition for post-conviction 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. The Petitioner failed to file his post-conviction petition within the one year statute of limitations. Accordingly, the State's motion is granted and the judgment of the trial court is affirmed.

Allen R. Carlton, pro se v. State of Tennessee
M2002-03097-CCA-R3-CO
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge J. Randall Wyatt, Jr.

The Petitioner, Allen R. Carlton, 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. The Petitioner fails to assert a cognizable claim for which habeas corpus relief may be granted. Accordingly, the State's motion is granted and the judgment of the trial court is affirmed.

State of Tennessee v. Wilmore Hatfield
M2002-00939-SC-R11-CD
Authoring Judge: Justice William M. Barker
Trial Court Judge: Judge Eric Shayne Sexton

This is an appeal from the Criminal Court for Fentress County which convicted the defendant, Wilmore Hatfield, of felony reckless endangerment as a lesser-included offense of aggravated assault. Relying on this Court's decision in State v. Moore, 77 S.W.3d 132 (Tenn. 2002), the Court of Criminal Appeals reversed the conviction, concluding that felony reckless endangerment was not a lesser-included offense of aggravated assault. The State then sought, and this Court granted, permission to appeal on the sole issue of whether felony reckless endangerment is a lesser-included offense of aggravated assault committed by intentionally or knowingly causing bodily injury to another by the use of a deadly weapon. We hold that it is a lesser-included offense under State v. Burns, 6 S.W.3d 453 (Tenn. 1999). Consequently, the Court of Criminal Appeals' decision with respect to the felony reckless endangerment conviction is reversed, and that conviction is reinstated.

William R. Smothers v. Markel Lighting, Inc; Cigna
W2002-02933-WC-R3-CV
Authoring Judge: Joe H. Walker, III, Sp.J.
Trial Court Judge: Julian P. Guinn, Judge
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel 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 trial court found that the Employee failed to give notice as required by TennesseeC.Annotated section 5- 6-21. We affirm.

Jason Blake Bryant v. State of Tennessee
E2002-00907-CCA-R3-PC
Authoring Judge: Judge Jerry L. Smith
Trial Court Judge: Judge James Edward Beckner

The petitioner filed a Petition for Post-conviction Relief September 26, 2001. After holding a hearing on the petition, the trial court denied the petition. The petitioner appealed the trial court's decision. We have reviewed the petitioner's many issues, including allegations of ineffective assistance of counsel and entry of an involuntary guilty plea, and we affirm the trial court's decision to deny the petition for post-conviction relief.

State of Tennessee v. Michael Lenard Hall
E2002-01834-CCA-R3-CD
Authoring Judge: Judge J. Curwood Witt, Jr.
Trial Court Judge: Judge Mary Beth Leibowitz

Michael Lenard Hall appeals from his Knox County Criminal Court conviction of first degree murder of his ex-wife, Pamela Hall. He claims that insufficient evidence supports his conviction, that the jury instructions were flawed, and that the prosecution denied him a fair trial through improper questioning of witnesses and improper argument. Because we agree with the defendant that the state failed to present sufficient proof of premeditation, we modify the first degree murder conviction and impose a second degree murder conviction in its place. However, we are unpersuaded of error warranting a new trial. We remand for sentencing on the second degree murder conviction.

Shamery Blair and Titus Blair v. West Town Mall
E2002-02005-SC-R11-CV
Authoring Judge: Chief Justice Frank F. Drowota, III
Trial Court Judge: Judge Dale C. Workman

We granted permission to appeal in this case to determine whether the Court of Appeals erred in reversing the trial court's judgment granting summary judgment for Defendant. In resolving this issue, we must also determine whether Tennessee recognizes the "method of operation" theory in premises liability cases and whether Plaintiff's reliance upon that theory is appropriate, as a matter of law, in this case. We hold that plaintiffs in premises liability cases in Tennessee may attempt to establish constructive notice of the presence of a dangerous condition by showing a pattern of conduct, a recurring incident, or a general or continuing condition indicating the dangerous condition's existence. This theory is available to Plaintiff in this case to pursue at trial. Because Defendant in this case failed to affirmatively negate an essential element of Plaintiff's claim or conclusively establish an affirmative defense, Plaintiff's burden to produce evidence establishing the existence of a genuine issue for trial was not triggered. Thus, the judgment of the Court of Appeals reversing the trial court's grant of summary judgment is affirmed. Accordingly, the judgment of the Court of Appeals is affirmed in part and modified in part, and this case is remanded to the trial court.

State of Tennessee v. Robert Simerly
E2002-02626-CCA-R3-CD
Authoring Judge: Judge J. Curwood Witt, Jr.
Trial Court Judge: Judge Robert E. Cupp

The defendant, Robert Simerly, appeals from his Johnson County Criminal Court conviction of first degree felony murder. On appeal, he claims: 1. The convicting evidence is insufficient. 2. The trial court erred in allowing evidence of non-testifying co-defendants' and accomplices' statements that inculpated the defendant. 3. The trial court erred in denying a mistrial when (a) an officer testified that, during pretrial questioning, the defendant requested an attorney, and (b) another witness testified that he had been threatened during the trial. 4. The trial court erred in the admission of expert testimony. 5. The trial court erred in the admission of a prejudicial videotape that depicted the deceased victim's face. 6. The trial court erred in excluding the defendant's proffered evidence of judgments of convictions of two state witnesses. 7. The trial court erred in failing to instruct the jury on a lesser included offense. Discerning no reversible error in the proceedings below, we affirm the judgment.

In The Matter of S.L.O.
W2002-00905-SC-R11-CV
Authoring Judge: Justice Adolpho A. Birch, Jr.
Trial Court Judge: Judge Clayburn L. Peeples

This case presents an issue of jurisdiction–whether the circuit court or the Court of Appeals has the authority to hear and decide this appeal from the juvenile court. We hold that the Circuit Court for Haywood County has jurisdiction to hear this appeal. Accordingly, we remand the case to the Circuit Court for Haywood County to conduct an appeal de novo pursuant to Tennessee Code Annotated section 37-1-159(a). The parties have also challenged the circuit court’s authority to transfer the case to the Court of Appeals. Because we hold that the circuit court has jurisdiction to hear the appeal, we do not consider the transfer issue.

Linda Clark, et al. v. Nashville Machine Elevator Company Incorporated
M2003-01568-SC-R3-CV
Authoring Judge: Justice Frank F. Drowota, III
Trial Court Judge: Chancellor Donald P. Harris

In this workers' compensation case, the employer, Nashville Machine Elevator Co., Inc., has appealed the trial court's award of death benefits to the widow and son of the employee, Eddie W. Clark, Jr., who suffered a fatal heart attack while driving the employer's vehicle home from work. The employer contends generally that the evidence preponderates against the trial court's finding that the employee suffered an injury causally related to his employment activities, and specifically argues that the heart attack was not compensable because the employee was not physically exerting himself when he suffered the heart attack. The appeal was argued before the Special Workers' Compensation Appeals Panel pursuant to Tennessee Code Annotated section 50-6-225(e)(3), but the appeal was transferred to the full Supreme Court prior to the Panel issuing its decision. The question before this Court is whether the evidence preponderates against the trial court's finding that the employee's heart attack arose out of his employment. After carefully examining the record and the relevant authorities, we find no error and affirm the judgment of the trial court. We further hold that physical exertion or strain is not required at the instant an employee's heart attack occurs, provided there is evidence linking the physical activities of the employment with the heart attack.

Joe Martin v. State of Tennessee
M2003-00534-CCA-R3-PC
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Judge J. Randall Wyatt, Jr.

The petitioner appeals the denial of his post-conviction relief petition relating to his convictions for first degree murder, attempted first degree murder, and attempted second degree murder. On appeal, the petitioner contends: (1) the state withheld exculpatory evidence; (2) the state failed to correct perjured testimony at trial; and (3) he received ineffective assistance of counsel at trial. Upon review of the record and the applicable law, we affirm the judgment of the post-conviction court.

Kevin Tate, pro se., v. Bruce Westbrook, Warden
W2003-01477-CCA-R3-HC
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Judge Joseph B. Dailey

The Petitioner, Kevin Tate, 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. The Petitioner fails to assert a cognizable claim for which habeas corpus relief may be granted. Accordingly, the State's motion is granted and the judgment of the trial court is affirmed.