Henry Earl Campbell v. Jim Keras Buick Company and
W2003-00158-WC-R3-CV
Authoring Judge: Joe H. Walker, III, Sp.J.
Trial Court Judge: George H. Brown, Jr., 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 the finding of fact and conclusions of law. The trial court found that the Employee failed to prove causation, failed to give notice as required by Tennessee Code Annotated section 5-6-21, and waived his right to worker's compensation benefits for a back injury. We affirm on the basis that Employee failed to prove causation and failed to prove notice. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Circuit Court Affirmed JOE H. WALKER, III, SP.J., in which JUSTICE JANICE M. HOLDER, J., and JAMES L. WEATHERFORD, SR.J., joined. James L. Gordon, Memphis, Tennessee, for the appellant, Henry Earl Campbell B. Duane Willis, Jackson, Tennessee, for the appellee, Jim Keras Buick Company and Great American Insurance Companies MEMORANDUM OPINION FACTUAL BACKGROUND Employee was 47 years of age, and had worked for the Employer for over twenty- five years. He has an eleventh grade education and a history of cleaning and detailing cars that Employer sells. Employee alleges that on June 1, 1998, he was getting in a car when his foot slipped, causing him to fall on his rear end and injure his back. 1 The Employee had a prior back injury in 1976, and a settlement was court- approved in 1977, awarding Employee benefits amounting to twenty percent permanent partial disability to the body as a whole. On May 17, 1978, Employee and Employer entered into a written agreement which acknowledges the prior injury and in which Employee agrees to not lift any heavy object which "could result or cause injury to my back." The agreement stated in part "my back was previously injured and under no condition will I hold Reed Keras Buick responsible for a back injury sustained on the job." Dr. Gary L. Kellett testified that he treated Employee in May 1997 for low back and right leg pain caused by a sneezing and coughing episode about a week before the office visit. The pain radiated down the right leg of Employee. Dr. Kellett recommended conservative treatment with exercises and medication. Dr. Kellett was aware of the prior disc operation and fusion Employee had and felt he was doing well prior to the sneeze. Employee alleges he was injured at work June 1, 1998. Dr. John P. Howser, neurosurgeon, testified that he examined Employee August 28, 1998, for back pain. Employee gave a history that approximately three months before the examination he sneezed and his foot slipped and he had the onset of back pain. His left leg had sharp pains which radiate to the back. Employee reported he had seen Dr. Kellett who gave him pain pills. Dr. Howser was aware of the past history of fusion surgery. Employee told Dr. Howser he had been doing well since the surgery until he sneezed. Examination revealed muscle spasm and restricted range of motion of the lumbar spine. He saw Employee during several visits and treated Employee with lumbar epidural and caudal epidural blocks, hamstring exercises, and facet blocks. Employee did not mention an injury at work during these visits. On December 21, 1998, Employee phoned and related he had an incident at work in May 1998, where he slipped on some chemicals on the floor and fell at work. Employee saw Dr. Howser again January 26, 1999, for an office visit. Dr. John Lindermuth, neurosurgeon, testified that he first saw Employee April 22, 1999. Employee gave a history of injury at work in May 1998. Dr. Lindermuth diagnosed failed back syndrome, based on Employee's previous surgery in 1976 with a good result, and then having re- injured himself. Employee testified at trial that he reported his fall and injury on June 1, 1988 to his supervisor, Steve Markle. Markle testified that Employee did not report a work- related injury on June 1, or any other day. He never filled out any worker's compensation forms, or referred Employee to a doctor. Employee has not returned to work at Employer's place of business, but has worked briefly at two other jobs. 2

Roger D. Reynolds v. Tennessee Municipal League Risk
W2003-00448-WC-R3-CV
Authoring Judge: Joe H. Walker, III, Sp.J.
Trial Court Judge: William D. Acree, Jr., 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 the finding of fact and conclusions of law. The trial court found that the Employee failed to prove causation and failed to give notice as required by Tennessee Code Annotated section 5-6-21. We affirm.

Eddie Dean Hall v. State of Tennessee
E2002-01986-CCA-R3-PC
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Ben W. Hooper, II

Petitioner, Eddie Dean Hall, pled guilty to two counts of first degree murder and received concurrent sentences of life without parole. No direct appeal was taken. Petitioner timely filed a petition for post-conviction relief, alleging that counsel was ineffective and that his guilty plea was not knowingly and voluntarily entered. Petitioner appeals from the trial court's denial of post-conviction relief. After a careful review of the record, we affirm the judgment of the trial court.

State of Tennessee v. Joey Thomas Holland
M2003-00988-CCA-R3-CD
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge Michael R. Jones

The Appellant, Joey Thomas Holland, appeals the judgment of the Robertson County Circuit Court denying his petition for writ of error coram nobis. Holland was convicted by a jury of two counts of aggravated sexual battery of his minor son. Holland alleges that his convictions should be set aside because the victim recanted his trial testimony. After a thorough review of the record, we affirm the decision of the trial court denying the petition.

In Re: C.M.M. and S.D.M
M2003-01122-COA-R3-PT
Authoring Judge: Presiding Judge William C. Koch, Jr.
Trial Court Judge: Judge W. Sidney Vinson, III

This appeal involves the termination of a mother’s parental rights with regard to two of her six children. Less than four months after the Tennessee Department of Children’s Services was granted temporary custody of the children, their foster parents filed a petition in the Juvenile Court for Houston County seeking permanent custody and the termination of the parental rights of the biological parents. The children’s mother contested the petition, but the father did not. Following a hearing, the juvenile court terminated the parental rights of both parents. The mother has appealed. We have determined that the order terminating the mother’s parental rights must be vacated because the record does not contain clear and convincing evidence that the Department made reasonable efforts to reunite the mother with her children.
 

State of Tennessee v. Darrell Davon King
M2003-00196-CCA-R3-CD
Authoring Judge: Judge Jerry L. Smith
Trial Court Judge: Judge Seth W. Norman

After being indicted on two counts of rape by force, two counts of rape, two counts of incest, and one count of sexual battery, the appellant, Darrell Davon King, pled guilty to two counts of rape, for which he received two, concurrent eight-year sentences at 100% service. The manner of the service of the sentences was left open. The trial court subsequently ordered the appellant to serve the sentences in incarceration. On appeal, the appellant argues that the trial court erred in denying him probation or community corrections. Upon review of the record and the parties' briefs, we conclude that the trial court erred in failing to state on the record its reasons for denying probation and/or a community corrections sentence. As a result we REVERSE the trial court's sentencing order and REMAND with directions that the trial court make specific findings of fact with respect to its sentencing determinations

State of Tennessee v. James Anthony Hill
M2003-00516-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge W. Charles Lee

The defendant, James Anthony Hill, was convicted of possession of a weapon in a penal institution, a Class C felony, and sentenced as a Range III, persistent offender to thirteen years in the Department of Correction. On appeal, he argues: (1) the trial court erred in not instructing the jury as to the lesser-included offense of possession of a prohibited weapon; (2) the evidence was insufficient to support his conviction; and (3) his sentence is excessive. Following our review, we affirm the judgment of the trial court.

State of Tennessee v. Robert Allen Crawford
E2003-00627-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Robert E. Cupp

The defendant was convicted by a Washington County Criminal Court jury of first degree felony murder in the perpetration of an aggravated burglary; criminally negligent homicide, a Class E felony; aggravated burglary, a Class C felony; aggravated assault, a Class C felony; and reckless endangerment, a Class E felony. The trial court merged the conviction for criminally negligent homicide with the conviction for first degree murder, and the defendant received concurrent sentences of life for the first degree murder conviction, four years for the aggravated burglary conviction, three years for the aggravated assault conviction, and one year for the reckless endangerment conviction. He raises two interrelated issues on appeal: whether the evidence was sufficient to support his felony murder conviction and whether the aggravated burglary count of the indictment was fatally defective for failing to name a victim for the underlying intended assault, thereby invalidating his convictions for aggravated burglary and first degree murder. Following our review, we affirm the judgments of the trial court.

Wendell Freels and wife, Gweneth Freels v. Gus W. Chilton
E2003-01319-COA-R3-CV
Authoring Judge: Judge Herschel Pickens Franks
Trial Court Judge: Judge Russell E. Simmons, Jr.

Plaintiffs obtained two judgments in General Sessions Court. On appeal to Circuit Court the second Plaintiffs were awarded a monetary Judgment against defendant in Sessions Court, and defendant appealed to Circuit Court, where the Court declared the Judgment void for lack of  jurisdiction, and dismissed the case judgment was vacated for lack of jurisdiction. On appeal we affirm.

Tennessee Environmental Council, Inc., et at., v. Bright Par 3 Associates, L.P., et al.
E2003-01982-COA-R3-CV
Authoring Judge: Sr. Judge William H. Inman
Trial Court Judge: Chancellor Howell N. Peoples

A conservation easement affecting property adjoining South Chickamauga Creek in Chattanooga was created in 1996. Property zoned for business and owned and developed by some of the Defendants is adjacent to the easement. The Plaintiffs allege that the development and construction activities of the Defendants adversely and unlawfully affect the easement. The complaint was dismissed upon a ruling that the Plaintiffs had no standing to enforce the easement, notwithstanding the language of the Conservation Easement Act, Tennessee Code Annotated § 66-9-301, et. seq., that it may be enforced by the “holder and/or beneficiaries” of the easement. The controversy centers on the meaning of the word “beneficiaries.” We hold that any resident of Tennessee is a beneficiary of the easement, and thus has standing to enforce it. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Reversed and Remanded.
 

State of Tennessee v. Jared Singleton
M2002-02392-CCA-R3-CD
Authoring Judge: Presiding Judge Gary R Wade
Trial Court Judge: Judge Charles D. Haston, Sr.

The defendant, Jared Singleton, entered pleas of guilt to forgery, a Class E felony, and criminal impersonation, a Class B misdemeanor. After denying the defendant's request for judicial diversion under Tennessee Code Annotated section 40-35-313, the trial court imposed concurrent sentences of two years for the forgery and six months for the criminal impersonation. Probation was to be granted after service of 30 days in the county workhouse. In this appeal of right, the defendant contends that the trial court abused its discretion by denying judicial diversion. The judgment of the trial court is reversed and the defendant is granted judicial diversion. The cause is remanded to the trial court for the imposition of conditions of the probationary term.

Roger T. Johnson, Pro Se v. State of Tennessee
M2002-02902-CCA-R3-CO
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Robert L. Jones

The Petitioner, Roger T. Johnson, 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.

Judith A. Johnson, Surviving Widow of David C. Johnson, et al. v. Robert B. Richardson, d/b/a Richardson Landscaping & Trucking
M2002-02968-WC-R3-CV
Authoring Judge: John K. Byers, Sr. J.
Trial Court Judge: Allen W. Wallace, Judge
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann._ 5-6-225 (e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The defendant/appellant has appealed the action of the trial court, which overruled his motion to set aside a default judgment under the provisions of Tenn. R. Civ. P., Rule 6. The standard of review is whether the trial court abused its discretion in denying the motion to set aside the judgment. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Circuit Court is Reversed and Remanded JOHN K. BYERS, SR. J., in which ADOLPHO A. BIRCH and WILLIAM C. KOCH, JJ., joined. Debra A. Wall, Clarksville, Tennessee, attorney for appellant, Robert B. Richardson. Timothy K. Barnes, Clarksville, Tennessee, attorney for appellee, Judith A. Johnson, Kimberly Ann Mahoney and Sean Patrick Mahoney. MEMORANDUM OPINION Facts The plaintiffs brought this compensation suit to recover benefits under the Workers' Compensation Act as a result of an accident on July 22, 1994 in which her husband and the step- father of the two minor children was killed. The suit was filed on September 7, 1994. The defendant subsequently filed a motion for summary judgment. On December 3, 1994 the trial judge overruled the motion for summary judgment. There are no orders in the record before us from the date of the overruling of the summary judgment on December 3, 1994 until the entry of the default judgment which was entered on September 7, 21. The plaintiffs were awarded $167,832.. Subsequent to the order amending the motion for a summary judgment, the defendant filed a petition in the federal court declaring bankruptcy. This stayed the proceedings in the trial court. On August 1, 21, the defendant filed a motion to have a default judgment set aside which he averred was entered on May 25, 21. The motion further avers that on May 1, 21 the trial judge ordered the plaintiff to "place a document in the court file evidencing this matter had been removed from bankruptcy court" and the defendant further avers the plaintiff did not place said document in the file prior to May 25, 21, as directed by the trial judge. On the record before this court is a document designating notice as an order entered in the United States Bankruptcy Court granting relief from a stay of the proceedings in the Bankruptcy Court. This document recites that the relief from the automatic stay of this case was granted on October 2, 1998. Marked on the order was the notation "Received for Entry,"nunc pro tunc to 1/2/98." This appears to be placed there by the Bankruptcy Court. The order also shows a stamp which is "21 August 23 a.m. 9:32." This also appears to be an entry by the Bankruptcy Court. There is nothing in the record to show when this order was placed in the record in this case. There are no orders in the record memorializing any proceedings being held in the trial court on either May 1, 21 or May 25, 21. On September 7, 21 the trial judge entered a default judgment against the defendant in favor of the plaintiffs. The order recited that defendant was not present despite being duly notified of said court date. The order, approved by plaintiff's attorney for entry has a certification of service thereof on defendant's attorney which is undated. On September 19, 22, the plaintiff filed a "supplemental response to the motion to set aside the default judgment." (There is not another response to the motion to set aside the default judgment in the record.) On October 1, 21, the defendant filed another motion to have the default judgment set aside. This motions was accompanied by an affidavit from the defendant. Also on October 1, 21, the defendant filed a motion seeking to have the operation and effect of the default judgment suspended. On October 25, 22, the trial court entered an order denying the defendant's motion to set -2-

State of Tennessee v. James Lee Foreman, II
M2002-02595-CCA-R3-CD
Authoring Judge: Judge Joseph M. Tipton
Trial Court Judge: Judge Michael R. Jones

A Montgomery County Circuit Court jury convicted the defendant, James Lee Foreman, II, of two counts of rape, a Class B felony. The trial court merged the convictions and sentenced the defendant as a violent offender to ten years in confinement. The defendant appeals, claiming that his sentence is excessive. Having determined that we lack jurisdiction in the case, the defendant's appeal is dismissed.

State of Tennessee v. Troy Billingsley
M2003-01410-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge W. Charles Lee

The Defendant, Troy D. Billingsley, pled guilty to Driving After Being Declared an Habitual Motor Vehicle Offender, Felony Driving Under the Influence of an Intoxicant ("DUI") and Failure to Appear in the Circuit Court for Moore County. After a sentencing hearing, the trial court imposed an aggregate sentence of fifteen years in prison. On appeal, the Defendant contends that his sentence was excessive and contrary to law. Finding no reversible error, we affirm the trial court's judgments.

Tony G. Smith v. State of Tennessee
M2003-00598-CCA-R3-PC
Authoring Judge: Judge Joseph M. Tipton
Trial Court Judge: Judge Steve R. Dozier

The petitioner, Tony G. Smith, appeals as of right from the order of the Davidson County Criminal Court holding that his petition for post-conviction relief was barred by the statute of limitations and dismissing the petition without appointing counsel or holding an evidentiary hearing. The petitioner is seeking relief from his convictions for attempted first degree murder and stalking and his effective twenty-nine-year sentence. The petitioner contends that the trial court erred in its finding that the petitioner did not allege any circumstances that would qualify as an exception to the one-year statute of limitations for filing post-conviction relief. We affirm the trial court's dismissal of the petition

Catherine Claire Willcutts v. John Francis Willcutts
W2002-02636-COA-R3-CV
Authoring Judge: Presiding Judge W. Frank Crawford
Trial Court Judge: Chancellor Martha B. Brasfield

This is an appeal of a final decree of divorce primarily as it concerns custody of the parties’ children. The trial court awarded custody to mother and provided for a supervised visitation to father. Father appeals and, in addition to the custody issue, also presents issues pertaining to the trial court’s out-of-court interview with the children and the mental examination of the parties. We affirm.
 

Albert Thompson v. Patricia Chafetz
W2003-00518-COA-R3-CV
Authoring Judge: Presiding Judge W. Frank Crawford
Trial Court Judge: Judge George H. Brown

This is an appeal from an Order denying Appellant’s Tenn. R. Civ. P. 60 Motion, which sought relief from the grant of Appellee’s Motion for Summary Judgment. Appellant’s attorney failed to set the Motion for hearing until some nineteen (19) months after the entry of the Order granting summary judgment. The trial court found that the attorney’s failure to prosecute resulted in prejudice to Appellee and denied the Rule 60 Motion. We affirm.

Carlos Williams v. State of Tennessee
W2003-01175-CCA-R3-PC
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge Bernie Weinman

The Appellant, Carlos Williams, appeals the summary dismissal of his pro se petition for post-conviction relief. On appeal, Williams acknowledges that the instant petition was not timely filed; however, he alleges that a prior petition was timely delivered to the appropriate prison  official for filing but apparently never received by the Shelby County Criminal Court Clerk. For this reason, we find it necessary to vacate the post-conviction court's ruling and remand for a determination of whether Williams’ prior petition was timely filed.

State of Tennessee v. Douglas Marshall Mathis
M2002-02291-CCA-R3-CD
Authoring Judge: Judge Jerry L. Smith
Trial Court Judge: Judge Robert E. Burch

The defendant, Douglas Marshall Mathis, was convicted of first degree murder and sentenced to life imprisonment. In this appeal, he contends: (1) that the evidence is insufficient; (2) that the trial court erred by giving an irrelevant definition of "knowing" as a part of the instructions to the jury; (3) that the prosecutor's comments during closing argument were improper; (4) that he was denied the right to a fair and impartial jury; and (5) that the trial court erred by admitting certain evidence. The judgment of the trial court is affirmed.

State of Tennessee v. Douglas Marshall Mathis - Dissenting
M2002-02291-CCA-R3-CD
Authoring Judge: Presiding Judge Gary R. Wade
Trial Court Judge: Judge Robert E. Burch

Whether properly assigned or not this court may consider plain error upon the record under Rule 52(b) of the Tennessee Rules of Criminal Procedure. State v. Ogle, 666 S.W.2d 58 (Tenn. 1984). Before an error may be so recognized, it must be “plain” and must affect a “substantial right” of the accused. The word “plain” is synonymous with “clear” or equivalently “obvious.” United States v. Olano, 507 U.S. 725, 732 (1993). Plain error is not merely error that is conspicuous, but especially egregious error that strikes at the fairness, integrity, or public reputation of judicial proceedings. See State v. Wooden, 658 S.W.2d 553, 559 (Tenn. Crim. App. 1983). In State v. Adkisson, 899 S.W.2d 626, 639 (Tenn. Crim. App. 1994), this court defined “substantial right” as a right of “fundamental proportions in the indictment process, a right to the proof of every element of the offense and . . . constitutional in nature.” In that case, this court established five factors to be applied in determining whether an error is plain:

(a) The record must clearly establish what occurred in the trial court;
(b) a clear and unequivocal rule of law must have been breached;
(c) a substantial right of the accused must have been adversely affected;
(d) the accused [must not have waived] the issue for tactical reasons; and
(e) consideration of the error must be "necessary to do substantial justice."

Id. at 641-42. Our supreme court characterized the Adkisson test as a “clear and meaningful standard” and emphasized that each of the five factors must be present before an error qualifies as plain error. State v. Smith, 24 S.W.3d 274, 282-83 (Tenn. 2000).

State of Tennessee v. William Pendergrass
M2003-01769-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Russell Heldman

The defendant was convicted of third offense driving under the influence (DUI) and driving on a revoked license. He contends on appeal that (1) the evidence was insufficient to support the convictions, (2) the trial court erred in denying his motion to suppress because the deputy did not have reasonable suspicion to initiate the stop, and (3) the deputy's mention of the horizontal gaze nystagmus (HGN) test during his testimony entitled the defendant to a mistrial. Concluding that no reversible error occurred, we affirm the judgments of the trial court.

State of Tennessee v. Daniel Bilbrey
M2002-01043-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Lillie Ann Sells

Following a judicial diversion revocation hearing, the trial court sentenced Defendant to six years in the Tennessee Department of Correction in accordance with the terms of his plea agreement which had been negotiated at the time Defendant pled guilty to one count of aggravated assault. The trial court sentenced Defendant without conducting a sentencing hearing. Defendant now appeals his sentence of confinement arguing that the terms of his plea agreement called for a probated sentence in the event his judicial diversion was subsequently revoked. Alternatively, Defendant argues that the terms of his plea agreement did not survive the revocation of his judicial diversion, and the trial court should have conducted a sentencing hearing prior to imposing Defendant's sentence. Defendant also argues that the trial court erred in requiring him to report to his probation officer as a condition of bond pending appeal. Following a thorough review of the record in this matter, we affirm the judgment of the trial court.

Nelson Keith Foster v. State of Tennessee
E2003-01411-CCA-R3-PC
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge R. Jerry Beck

Petitioner, Nelson Keith Foster, appeals from the trial court's dismissal of his petition for post-conviction relief, without affording Petitioner an evidentiary hearing. In his petition, Petitioner asserted that he was entitled to relief from his three convictions for violation of the Habitual Motor Vehicle Offender Act (HMVO) due to ineffective assistance of counsel. The trial court dismissed the petition because Petitioner had argued in his direct appeal from the convictions that he was entitled to relief because he had received ineffective assistance of counsel. We affirm the judgment of the post-conviction trial court.

Barbara Jean Cain v. Charles Curtis Cain
W2003-00563-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Chancellor Joe C. Morris

Wife filed for divorce alleging Husband was guilty of inappropriate marital conduct. Trial court granted Wife an absolute divorce, ordered a martial property distribution, and awarded wife alimony and attorney’s fees. Husband appeals. We affirm the distribution of marital property, modify the award of attorney’s fees, vacate the requirement to provide life insurance and remand.