Larry Patterson v. Premier Medical Group, P. C.,
M2001-01380-WC-R3-CV
Authoring Judge: Joe C. Loser, Jr., Sp. J.
Trial Court Judge: Allen Wallace, Judge
In this appeal, the appellants contend (1) the trial court erred in awarding disability benefits in light of the appellee's refusal to undergo carpal tunnel release surgery, (2) the trial judge erred in admitting into evidence and considering testimony of a vocational expert called by the appellee, and (3) the trial judge erred in awarding permanent total disability benefits for a scheduled injury. As discussed below, the panel has concluded the award of permanent partial disability benefits should be modified to one based on 1 percent to both arms.

Steve V. Walker v. State of Tennessee
E2001-00322-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Douglas A. Meyer

The Petitioner filed a petition for writ of habeas corpus, alleging that his sentence was illegal because: (1) he was improperly sentenced as a persistent offender; (2) his sentence was improperly enhanced because he did not receive the State's notice of intent to seek enhanced punishment; (3) the record of his prior criminal convictions relied upon to sentence him was inaccurate; and (4) his counsel was ineffective. The trial court denied the Petitioner's request for habeas corpus relief, and the Petitioner appealed. Because the Petitioner has failed to allege grounds that would warrant habeas corpus relief, the judgment of the trial court is affirmed.

Behi Hamidy v. W. Dyrk Halstead
M2001-02791-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: R.E. Lee Davies
This is a suit for breach of contract wherein the trial court held that a promissory note, rendered non-negotiable by provisions relating to payment prior to maturity by means other than money, was nonetheless a binding contract between the parties thereto. Holding that parol evidence was inadmissible to vary the unambiguous terms of the contract, the trial court entered judgment for the plaintiff. We affirm the action of the trial court.

Dept. of Children's Services v. C.M.S.
M2001-02893-COA-R3-JV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: George L. Lovell
This case involves the termination of parental rights of the mother of two children, both of whom were born while the mother was a minor. At the time of the hearing the son was almost five and the daughter was almost three, and they have been in state custody since they were one year old and three months old, respectively. The trial court terminated the mother's parental rights because of the persistence of conditions which prevent the safe return of the children to the mother and because there was little likelihood the conditions would be remedied at an early date to allow a safe return in the near future. We affirm that decision.

Marshall Moffett v. Dept. of Correction
M2001-03011-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Carol L. Mccoy
Petitioner filed, pro se, a "Petition for Nunc Pro Tunc" in which he asserted that he was presently confined and that the defendant added 1775 days to his sentence unlawfully. The trial court granted the defendant's Motion for Summary Judgment and we affirm the trial court.

Deborah Coates v. Thomas Coates
M2001-01928-COA-R3-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: Stella L. Hargrove
This appeal arose after the trial court rejected the father's petition to reduce child support. Because the father showed a substantial variance between the amount of child support he was ordered to pay and the amount of child support called for under the guidelines, we reverse the trial court's order denying modification prospectively. Because the court originally awarded support from the father's property, we affirm the denial of modification of that portion of the child support award.

Jabari Issa Mandela v. Donal Campbell
M2001-01956-COA-R3-CV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: Ellen Hobbs Lyle
Davidson County -After a federal court barred an inmate legal helper from submitting further filings, the warden removed the legal helper from his job. The prisoner filed a Petition for Declaratory Judgment against the Warden and the Commissioner of Correction in an attempt to have his job restored. The trial court dismissed the petition for failure to name a proper party and failure to state a claim for which relief can be granted. We affirm the trial court.

Kelley McEvoy v. Kimberly Brewer
M2001-02054-COA-R3-CV
Authoring Judge: Judge William C. Koch, Jr.
Trial Court Judge: C. L. Rogers
This appeal involves the custody of a seven-year-old girl. Her parents initially agreed to joint custody in their marital dissolution agreement that was approved by the General Sessions Court for Sumner County. Both parties later petitioned for sole custody. The general sessions court determined that the father should be the child's primary custodial parent because the mother had married a man who posed a credible threat of domestic abuse or violence toward the child and because the existing alternating custody arrangement was no longer workable. The mother asserts on this appeal that the evidence does not support the general sessions court's decision to change custody. We have determined that the evidence does not preponderate against the court's decision to modify the custody arrangement and to award the father primary physical custody of the child.

Jerry L. Johns v. Donal Campbell
M2001-02110-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Irvin H. Kilcrease, Jr.
Jerry L. Johnson, pro se, seeks a declaratory judgment that he is being held in the Tennessee Department of Correction without proper authority. The trial court sustained a Motion for Summary Judgment filed by the Commissioner and we affirm the trial court.

J.D. Hickman v. Board of Parole
M2001-02346-COA-R3-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: Carol L. Mccoy
Inmate filed a motion for declaratory relief regarding his rights to access certain materials held by the Board of Probation and Parole and sought an order from the trial court mandating the production of those materials at the expense of the Board. The trial court denied the motion for summary judgment filed by the inmate and dismissed the action in its entirety because the requirements for a mandatory injunction had not been met, but stated that the inmate was not prohibited from again seeking the materials by identifying the specific documents he wanted copied and paying in advance for the copies. We affirm the trial court's decision to deny the motion for summary judgment, but reverse the dismissal and remand.

State v. John Phillips
M2001-02396-COA-R3-CV
Authoring Judge: Judge William C. Koch, Jr.
Trial Court Judge: Steve R. Dozier
This appeal involves the forfeiture of two motorcycles and $15,910 seized by the District Attorney General for the Twentieth Judicial District as part of a proceeding to abate a motorcycle club as a nuisance. The owners of the club requested the Criminal Court for Davidson County to return the motorcycles and cash because they had not been used to maintain or conduct the motorcycle club. The trial court conducted a bench trial and ordered that the property be forfeited. The motorcycle club's owners have appealed. We have determined that the evidence supports the forfeiture order with regard to the two motorcycles and all but $680 of the cash.

Dan Johnson v. Department of Correction
M2001-02424-COA-R3-CV
Authoring Judge: Judge William C. Koch, Jr.
Trial Court Judge: Ellen Hobbs Lyle
This appeal involves a dispute between a prisoner and the Tennessee Department of Correction regarding historical sentencing information contained in his records. The prisoner filed a petition for writ of mandamus in the Chancery Court for Davidson County seeking an order directing the Department to remove an outmoded release eligibility date from his records and to certify him as eligible for parole. The trial court granted the Department's motion for summary judgment, and the prisoner has appealed. We affirm the judgment because the manner in which the Department maintains its records is not a ministerial function and because the prisoner does not have a legal right to require the Department to maintain his records in any particular way.

Karen Gale Engel v. Jerry Burton Young, Sr.
M2001-00734-COA-R3-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: Clara W. Byrd
This appeal arose after a paternity and custody proceeding was resolved by the trial court in which custody of the child was granted to Mother and visitation was granted in part to Father and in part to the child's half-siblings, Father's adult daughters. Mother appeals, arguing that the third party visitation order violates her constitutional rights as a parent and that she should have been awarded the tax deduction for the child. Because the trial court was incorrect in ordering the third party visitation, we reverse that portion of the trial court's decision which awarded visitation to the child's half-siblings. Because the trial court did not abuse its discretion in awarding the tax deduction to Father, we affirm that portion of the trial court's decision. We also decline to award Mother attorney's fees on appeal

Kelly Lee Crawford, et al. v. Brian C. Beatt
M2001-01661-COA-R3-CV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: Carol L. Soloman
The Circuit Court of Davidson County granted summary judgment to the defendants on this medical malpractice case, holding that the claim was barred by the statute of limitations. The court also awarded the defendants their costs and attorney's fees as sanctions for the plaintiffs' false answers in discovery. We affirm.

Wayne Fuller v. Donal Campbell
M2001-01719-COA-R3-CV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: Ellen Hobbs Lyle

Wayne Fuller v. Donal Campbell
M2001-01719-COA-R3-CV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: Ellen Hobbs Lyle

State of Tennessee v. Michael Danelle Harvey
W2001-01164-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Donald H. Allen
Defendant was convicted for one count of statutory rape and one count of criminal exposure to HIV. Defendant appeals alleging (1) that there was insufficient evidence to support his convictions and (2) the imposition of consecutive sentences was excessive. We affirm the trial court judgment.

In Re: The Adoption of D.P.M.
E2001-00958-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: John F. Weaver
This case started with competing petitions for adoption filed by the maternal and paternal grandparents of D.P.M., who is six years old. After the Trial Court terminated the parental rights of both natural parents on the basis of abandonment, the adoption of D.P.M. was awarded to the maternal grandparents. The parties agreed the paternal grandparents would be granted visitation, and the Trial Court set forth the amount of visitation and the rights and restrictions of the paternal grandparents when exercising visitation. Notwithstanding the maternal grandparents' agreement to this visitation, they appeal the granting of visitation, as well as the rights granted to the paternal grandparents when exercising this visitation. We affirm.

In Re: Sanford & Sons Bail Bonds, Inc.
E2001-01479-CCA-R3-CV
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge James E. Beckner

The appellant, Sanford & Sons Bail Bonds, Inc., appeals the judgment of the Hamblen County Criminal Court forfeiting $5,000 bail in the case of criminal defendant Florentino DeJesus Hernandez. Following a review of the record and the parties' briefs, we reverse the judgment of the trial court and remand this case for proceedings consistent with this opinion.

Washshukru Al-Jabbar A'La vs. State
E2001-03133-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks

Washshukru Al-Jabbar A'La vs. State
E2001-03133-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: D. Michael Swiney

State of Tennessee v. Terrance Burke
W2001-01462-CCA-R3-CD
Authoring Judge: Judge J. Curwood Witt, Jr.
Trial Court Judge: Judge Chris B. Craft
A Shelby County jury convicted the defendant, Terrance Burke, of aggravated robbery. On appeal, he challenges the sufficiency of the convicting evidence and the trial court's denial of his pretrial motion to suppress the victim's identification of him via a photographic line-up. Discerning no reversible error, we affirm the conviction.

State of Tennessee v. Jody Alan Ferguson
W2001-02786-CCA-R3-CD
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge William B. Acree

On November 9, 1999, the Appellant, Jody Alan Ferguson, pled guilty to nine counts of forgery in the Obion County Circuit Court and was sentenced to two years of community corrections after service of thirty days confinement in the county jail. On March 9, 2000, Ferguson pled guilty to four counts of forgery and received an effective sentence of two years in the Tennessee Department of Correction. Ferguson's placement in the community corrections program was revoked and his nine two-year sentences were ordered to be served in the Department of Correction concurrently with his March 9th sentences. On June 21, 2000, Ferguson was granted determinate release by the Department of Correction for the series of two-year sentences imposed on November 9, 1999, and March 9, 2000, and he was returned to supervised probation. On June 26, 2000, Ferguson again pled guilty to two counts of forgery and received concurrent two-year suspended sentences to be served concurrently to all outstanding sentences previously imposed. On August 28, 2001, probation violation warrants were issued against Ferguson. The warrants alleged that Ferguson had violated the following conditions: (1) failed to report to the probation officer; (2) failed to pay supervision fees; (3) failed to pay restitution and court costs; and (4) failed to perform community service work. On November 9, 2001, the trial court revoked Ferguson's probationary status and ordered him to serve the remainder of his two-year sentences in the Tennessee Department of Correction. On appeal, Ferguson does not contest the trial court's finding that he violated the terms of his probation. Rather, Ferguson argues that the trial court abused its discretion by not again placing him on probation or community corrections. After review, we find no error and affirm the judgment of the trial court.

Heather Lynn Key v. American Insurance Company
M2001-00980-WC-R3-CV
Authoring Judge: William H. Inman, Sr. J.
Trial Court Judge: J. O. Bond, 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 trial court found the plaintiff to be 22 _ percent anatomically impaired, and applied a multiplier of 2 _ times in awarding benefits based upon a 56.25 vocational percent impairment. The evidence preponderates against a finding of 22 _ percent anatomical impairment. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Criminal Court Affirmed as Modified WILLIAM H. INMAN, SR. J., in which ADOLPHO A. BIRCH, JR., J. and HOWELL N. PEOPLES, SP. J., joined. William R. Pigue and A. Allen Smith, III, Nashville, Tennessee, for the appellant, American Insurance Company. William Joseph Butler and E. Guy Holliman, Lafayette, Tennessee, for the appellee, Heather Lynn Key. MEMORANDUM OPINION Background On March 18, 1999, the plaintiff filed a complaint for workers' compensation benefits resulting from alleged injuries to her right shoulder, arm and neck. On May 19, 1999, she filed another complaint for workers' compensation benefits resulting from alleged injuries to her left shoulder and arm. The defendant responded that the plaintiff continued to work, that her injuries were minimal, and that she suffered no significant anatomical impairment or vocational disability. The cases were consolidated for trial. The trial court found that the plaintiff sustained a 22 _ percent anatomical impairment resulting in a 56.25 percent vocational impairment and awarded benefits accordingly. The defendant appeals, insisting that the award is excessive because the findings are not supported by credible proof. Our review is de novo on the record with the presumption that the judgment is correct unless the evidence otherwise preponderates. Rule 13 (d) T.R.A.P. The Evidence The plaintiff is a 29 year old mother of two children, ages seven and nine. She is a high school graduate with some college work and vocational courses in computer science and various hobbies. She began working for Bosch Braking Systems in April 1995, doing assembly work. She resigned her job on March 7, 2 because "I didn't feel I was getting better." It is significant that she missed no time from work, and she testified that at the time of trial nine months after she left work her condition had improved. She was then under no medical treatment, and she "had no interest in working." She testified that she had difficulty in performing household chores, driving her car and other activities which required physical exertion. Her husband corroborated her testimony concerning her imposed work limitations. Plaintiff testified that she first began having difficulties in October of 1998 when she began experiencing discomfort in her right shoulder and arm. She was treated by Dr. Michael Bernui, whose notes indicate that he initially treated her left shoulder and arm. At a follow-up visit, she complained of discomfort in her right shoulder and arm, and Dr. Bernui treated her conservatively. She next saw Dr. Bernui several months later, shortly before filing suit, complaining of persistent pain in her right arm and shoulder. He continued to prescribe physical therapy and the use of anti- inflammatory drugs, but determined that a nerve conduction study would be useful in evaluating the plaintiff's condition. He referred her to a neurologist, Dr. Alan Bachrach, for a complete EMG study. The study was performed of the right upper extremity and revealed no evidence of abnormality. Dr. Bernui continued to treat the plaintiff on a weekly basis. With no objective evidence of physical dysfunction, he ordered an x-ray of her right shoulder which revealed no abnormality. He thereupon referred the plaintiff to an orthopedic specialist, Dr. Thomas Gautsch. -2-

State of Tennessee v. William J. Burns
E2001-01601-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Rex Henry Ogle

William J. Burns appeals from his aggravated burglary and theft convictions. He was convicted at a jury trial in the Sevier County Circuit Court, and he is presently serving an effective fifteen-year sentence as a persistent offender for these crimes. He claims in this appeal that the evidence is insufficient to support his aggravated burglary conviction and that the lower court erred in denying his motion for a mistrial. Because we disagree, we affirm.