State of Tennessee v. Michael Shawn Shoffner
E2000-00993-CCA-R3-CD
Authoring Judge: Judge J. Curwood Witt, Jr.
Trial Court Judge: Judge Mary Beth Leibowitz

Michael Shawn Shofner appeals from the Knox County Criminal Court's denial of his "Motion to Void Judgment," in which he seeks relief under Rule of Civil Procedure 60.02 from an order declaring that he is an habitual motor vehicle offender. He claims on appeal that the habitual motor vehicle offender order is void because (1) no summons was attached to the show cause order served upon him to notify him of the habitual motor vehicle offender proceedings, and (2) the state failed to obtain an alias summons after process was not returned within thirty days of entry of the show cause order. We hold that Shofner's motion for relief under Rule 60.02 is untimely. Therefore, the judgment of the trial court is affirmed.

Patrick Joseph Edgin vs. Valentina Paulovna Edgin
M2000-02122-COA-R3-CV
Authoring Judge: Sr. Judge William H. Inman
Trial Court Judge: Jim T. Hamilton

Bonnie Elliott v. The Blakeford At Green Hills
M2000-00512-WC-R3-CV
Authoring Judge: Weatherford, Sr. J.
Trial Court Judge: Russ Heldman, Chancellor
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated _ 5-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The defendant, The Blakeford at Green Hills Corporation appeals the judgment of the Chancery Court of Williamson County where the trial court found: 1) the plaintiff, Mrs. Bonnie Elliott suffered a compensable work-related injury when she ruptured three extensor tendons in her left hand while working for the defendant; 2) Mrs. Elliott entitled to temporary total disability benefits for 32 weeks, and permanent partial disability benefits for 15 weeks based on a seven percent (7%) permanent anatomical impairment and twenty-eight percent (28%) vocational disability; 3) the defendant failed or refused to offer or provide medical attention to Mrs. Elliott in violation of Tennessee Code Annotated _ 5-6-24 entitling her to a judgment of $711.36 for reimbursement of medical and insurance premium expenses; and 4) the defendant wrongfully and in bad faith failed to pay Mrs. Elliott's claim for temporary total disability payments entitling her to an additional judgment of $711.36. For the reasons discussed in this opinion we find that the judgment of the trial court should be affirmed as modified.

Union Bank & Trust Company v. Kirby Boles v. Tn Dept of Labor
M2000-01366-WC-R3-CV
Authoring Judge: Tom E. Gray, Sp.J.
Trial Court Judge: Vernon Neal, Chancellor
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated _ 5-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The Second Injury Fund appeals claiming a setoff/credit for the amount of temporary total disability benefits paid to the employee by the employer and a setoff/credit for social security contribution made by the employer. For reason stated the judgment of the trial court is affirmed, and this case is remanded Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Chancery Court is affirmed. TOM E. GRAY, SP.J., in which FRANK F. DROWOTA, III, J. and JOHN K. BYERS, SR. J., joined. Paul G. Summers, Attorney General and Reporter, and E. Blaine Sprouse, Assistant Attorney General, Nashville, Tennessee for the Appellant, James Farmer, Director of the Tennessee Division of Worker's Compensation Second Injury Fund. Kelly R. Williams, Livingston, Tennessee for the Appellee, Kirby Boles. MEMORANDUM OPINION The trial court found that Kirby Boles, employee, was entitled to an award of 1% permanent and total disability to the body as a whole under Tennessee Code Annotated 5-6- 27(4)(A)(i) and apportioned disability of 47% to the employer, Union Bank and Trust Company, and 53% to the Second Injury Fund. Finding that the employee was more than 6 years of age at the time of the work related accident 26 weeks of permanent total disability were awarded in addition to all temporary total disability benefits paid. Employee Boles was found to be currently receiving social security disability benefits by the Court, and he was ordered to inform the Second Injury Fund within thirty (3) days of receiving any social security old age insurance benefits. The attorney representing Mr. Boles was granted a fee of $7,3.28 which amounted to 2% of the 26 week award, and the trial court commuted to a lump sum 1 weeks of benefits. BACKGROUND Kirby E. Boles was born on the 6th day of May, 1935. On the 9th day of March, 1996 while in the course and scope of his employment with Union Bank and Trust Company he was involved in an automobile accident. Union Bank and Trust Company commenced this action by filing a complaint in the Chancery Court for Overton County, Tennessee at Livingston to have the Court determine therights and responsibilities of the parties, Union Bank, plaintiff, and Kirby Boles, defendant, according to the Workers' Compensation Law, State of Tennessee. Kirby Boles filed an answer and counter- complaint. Thirteen months after the action was commenced Union Bank and Trust Company moved the Court to add the Tennessee Department of Labor, Second Injury Fund as a Third-Party Defendant. In support of the motion, movant attached a copy of an order entered in the Circuit Court for Overton County, Tennessee on the 1th day of February, 1995 whereby Kirby E. Boles was found to have suffered a 28% permanent partial impairment to the body as a whole as a result of an accident to his left shoulder arising out of and in the course and scope of his employment at First Baptist Church, Livingston. The motion was granted, and the Second Injury Fund became a party. No party presented testimony at trial but stipulated as follows: 1. Mr. Boles sustained a compensible injury to the body as a whole on March 9, 1996 as aresult of an automobile accident arising out of and in the course and scope of his employment; 2. Mr. Boles was over the age of 6 at the time of the accident; 3. Mr. Boles was permanently and totally disabled as a result of the injury on March 9, 1996; 4. The proper weekly compensation rate of Mr. Boles is $14.39 per week. -2-

Cassie Gilliland vs. Billy Pinkley
W2000-00982-COA-R3-CV
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Roy B. Morgan, Jr.
Plaintiffs appeal from a grant of summary judgment in favor of defendant Vision Care Properties, Inc., and the refusal of the trial court to subsequently grant relief under Tenn. R. Civ. P. 60.02. The complaint alleged that the minor child, Cassie Gilliland, was attacked and injured by a vicious dog owned by, and kept at the home of, defendant Billy Ray Pinkley, which residence was leased to Pinkley by defendant Vision Care Properties, Inc. Subsequent to the grant of summary judgment, plaintiffs sought Rule 60.02 relief based upon an affidavit of Pinkley which was inconsistent with his prior affidavit. We affirm the trial court in all respects.

Roy Anderson Corporation v. Westchester Fire
W2000-01489-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Robert A. Lanier

Julia Crews vs. Buckman Lab
W2000-01834-COA-R3-CV
Authoring Judge: Judge W. Frank Crawford
Trial Court Judge: D'Army Bailey
Plaintiff, attorney employed in legal department of corporation, sued the corporation for retaliatory discharge. Plaintiff alleges that she was discharged in retaliation for her reporting her superior, general counsel of the corporation, for the unauthorized practice of law, because her supervisor was unlicensed in the State of Tennessee. The trial court dismissed plaintiff's complaint pursuant to Tenn.R.Civ.P. 12.02(6) for failure to state a claim upon which relief can be granted. Plaintiff appeals. We affirm.

Walter Chandler vs. Canale & Co.
W2000-02067-COA-R3-CV
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Floyd Peete, Jr.
Plaintiff appeals from a grant of summary judgment in favor of the defendants. The complaint alleged the plaintiff had a partnership with the defendants and accused the defendants of breach of contract. The trial court granted summary judgment for the defendants on the basis of judicial estoppel, concluding the plaintiff had previously testified under oath in prior litigation that he had no ownership interest in the business. We affirm the judgment of the trial court.

Jeffrey Butler vs. City of Jackson
W2000-02154-COA-R3-CV
Authoring Judge: Judge W. Frank Crawford
Trial Court Judge: Donald H. Allen
This case is before the court for the second time. Defendant was tried in city court for violation of five separate city ordinances and was fined a total of $250.00 for the five violations. After a de novo trial in circuit court, defendant was found guilty of violating the five separate ordinances and was fined a total of $250.00. This Court reversed the conviction on two of the five ordinances and affirmed the convictions on three of the ordinances. The case was remanded to the trial court to determine the amount of fine for the three violations. On remand, the trial court assessed fines totaling $750.00, being $250.00 for the violation of each of the three ordinances. Defendant has appealed. We reverse the trial court and set defendant's fine at $250.00 for violation of the three city ordinances.

Eddie Joe Hurst, Sr. vs. Sheila Gail Williams Hurst
E2000-00458-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: William R. Brewer
This appeal from the Blount County General Sessions Court concerns whether the Trial Court erred in dismissing the Complaint to Enforce Judgment filed by the Appellant, Sheila Gail Williams Hurst. Ms. Hurst appeals the decision of the General Sessions Court. We reverse the decision of the Trial Court and remand for further proceedings, if any, consistent with this opinion. We adjudge cost of the appeal against the Appellee, Eddie Joe Hurst, Sr.

Cathy L. Allen v. John Fox Allen, Jr.
CH-00-0092-3
Trial Court Judge: D. J. Alissandratos

State of Tennessee v. John Riley Roper
E2000-00294-CCA-R3-CD
Authoring Judge: Judge Joseph M. Tipton
Trial Court Judge: Judge D. Kelly Thomas, Jr.

The defendant appeals from his conviction for driving under the influence, third offense, contending that the trial court erred by denying his motion to sever. We affirm the judgment of the trial court.

State of Tennessee v. Michael Colvin - Dissenting
E2000-00701-CCA-R3-CD
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge Lynn W. Brown

I am unable to join with my colleagues in holding that a trial judge may not modify a misdemeanant’s “program eligibility” percentage following revocation of the misdemeanant’s suspended sentence. Our sentencing laws provide that “in imposing a misdemeanor sentence, the court shall fix a specific number of months, days or hours and the defendant shall be responsible for the entire sentence . . .,” subject to various authorized sentencing credits. Tenn. Code Ann. § 40-35-302(b). The program eligibility percentage, as provided by subsection 302(d), has no bearing upon the misdemeanant’s length of sentence or when the sentence expires; rather, as noted above, every non-suspended misdemeanor sentence is served at one hundred percent. Moreover, as observed by the majority, program eligibility percentage is distinguished from probation, which is authorized in subsection 302(e). Program eligibility, which is viewed under our sentencing law as a rehabilitative measure, relates only to placement in “rehabilitative programs” for service of the sentence as
imposed. The fixing of a percentage for program eligibility, as with probation, must be determined at sentencing. Tenn. Code Ann. § 40-35-302(d).

State of Tennessee v. Michael Ray Swan
M2000-00539-CCA-R3-CD
Authoring Judge: Presiding Judge Gary R Wade
Trial Court Judge: Judge Jane W. Wheatcraft

The defendant, Michael Ray Swan, was convicted for simple assault, driving on a revoked, suspended, or cancelled license, and violating the implied consent law. The trial court sentenced the defendant to 11 months, 29 days for the assault; ordered a term of six months on the revoked license conviction; and revoked the defendant's license for one year for violating the implied consent law. In this appeal of right, the defendant presents the following issues: (1) whether there was sufficient evidence to support the convictions; (2) whether the trial court properly charged the jury; (3) whether the trial court erred by allowing the state to submit a statement of evidence; (4) whether the trial court erred by denying defendant's motion to stay the suspension of his license; and (5) whether the trial court erred by revoking the defendant's license. After a review of the record, we reverse and dismiss the conviction for driving on a revoked, suspended, or cancelled license; the judgment for the implied consent violation is modified to a one-year suspension rather than revocation. The conviction for simple assault is affirmed.

State of Tennessee v. Kenneth Lamont Anthony
M2000-00839-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Seth W. Norman

The Defendant, Kenneth Anthony, was convicted by a Davidson County jury of first degree pre-meditated murder and attempted second degree murder. For these offenses, the Defendant received a sentence of imprisonment for life and a concurrent sentence of ten years in the Tennessee Department of Correction, respectively. On appeal, the Defendant challenges the sufficiency of the evidence with regard to the first degree premeditated murder conviction. Finding sufficient evidence in the record to support the Defendant's convictions, we affirm the judgment of the trial court.

State of Tennessee v. Lillie Fran Ferguson
W2000-01687-CCA-R3-CD
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge Roger A. Page

The Defendant, Lillie Fran Ferguson, pled guilty to possession with intent to sell or deliver less than .5 grams of a Schedule II controlled substance and to failure to obey a stop sign. As part of her plea agreement, she expressly reserved with the consent of the trial court and the State the right to appeal certain certified questions of law pursuant to Tennessee Rule of Criminal Procedure 37(b)(2) relating to the frisk of her person and the subsequent seizure of contraband. In this appeal, the Defendant asserts that the trial court erred by refusing to suppress the evidence obtained against her as the result of an unlawful frisk. She claims that the officer did not have reasonable suspicion that she was armed and dangerous, thereby warranting a Terry pat-down, and that the incriminating nature of the crack pipe felt by the officer during the pat-down was not immediately apparent within the meaning of the "plain feel" doctrine. However, because the Defendant failed to properly certify her issues for review, we are unable to reach the merits of her case. Accordingly, this appeal is dismissed.

Jeffery Lynn Anderson v. State of Tennessee
W2000-01782-CCA-R3-PC
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Judge J. Steven Stafford

The petitioner originally pled guilty to felony reckless endangerment, evading arrest in a motor vehicle, and two counts of theft over $1,000. The petitioner sought post-conviction relief, which was denied by the post-conviction court. In this appeal, the petitioner contends his trial counsel provided ineffective assistance of counsel. After a thorough review of the record, we conclude that the post-conviction court correctly denied post-conviction relief.

Cecil v. Crowson, Clerk
M2000-03060-SC-RL-RL

Travelers Indemnity Co. vs. Kenton Freeman, et al
M2001-00657-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Travelers Indemnity Company [Travelers] filed a complaint for a declaratory judgment respecting its liability to pay UM coverage for the minor child of its policyholder who was divorced from the child's mother, with joint custody having been awarded. Mother was killed in a traffic accident in Alabama; her passenger child was injured. Mother owned and was driving her automobile, and she also had UM coverage. The adverse driver had split liability coverage all of which was paid, in equal parts, to the Administrator of the mother's estate, and to the minor child. Mother's UM carrier paid its entire policy proceeds to her administrator. Travelers objected, inter alia, to the lack of allocation of the proceeds of mother's UM coverage. Travelers' insured, on behalf of his minor child, filed a counter-claim against Travelers for the entire UM coverage, notwithstanding an amount certain had never been determined. The court found that Travelers had never disputed that the value of the minor child's claim exceeded the UM coverage and rendered a summary judgment against Travelers for an amount certain. We vacate and remand.

In re: Estate of Lester Doyle and Estate of Edgar Doyle vs. William Hunt
M1997-00179-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Frank G. Clement, Jr.
The beneficiaries of the Edgar J. Doyle estate and trust petitioned the court for removal of the executor/trustee of the estates and trusts of Lester Hill Doyle and Edgar J. Doyle for, inter alia, failure to timely file the required inventories and accountings of both estates. Finding that the executor/trustee breached his fiduciary duty, the trial court removed the executor/trustee and appointed a third party not nominated in either will as the successor executor/trustee in both estates. The executor/trustee alleges error with his removal without an evidentiary hearing and the court's appointment of the successor trustee. We reverse.

Woodrow Wilson vs. Sentence Information Services, et al
M1998-00939-COA-R3-CV
Authoring Judge: Judge William C. Koch, Jr.
Trial Court Judge: Irvin H. Kilcrease, Jr.
This otherwise routine dispute over sentence reduction credits raises a seldom-considered point of procedure regarding the proper method for deciding contested facts at the preliminary motion stage. A prisoner filed suit in the Chancery Court for Davidson County against the Tennessee Department of Correction and other state and city officials asserting that he had not been awarded sentence reduction credits allegedly earned while incarcerated in the Davidson County Criminal Justice Center. After the Department filed a Tenn. R. Civ. P. 12.02(1) motion to dismiss on the ground that the prisoner had not exhausted his administrative remedies, the prisoner asserted that he had exhausted all of the remedies available to him from the Department. After considering the arguments and evidentiary materials submitted by both parties, the trial court concluded that the prisoner had not exhausted his administrative remedies and dismissed the suit. On this appeal, the prisoner asserts that the trial court erred when it concluded that he had not exhausted his administrative remedies. We have determined that the evidence regarding the prisoner's exhaustion of his administrative remedies does not preponderate against the trial court's conclusion. Accordingly, we affirm the dismissal of the suit.

State of Tennessee v. Alvin Ray Taylor - Dissenting
M1999-2566-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge L. Craig Johnson

I find that I must respectfully depart from Judge Hayes’s opinion. I concur in the reversal of the fine of $27,500, but I disagree that the fine provision of Code section 55-50–504(a) should be declared unconstitutional and that we should impose a fine pursuant to the provisions of Tennessee Code Annotated section 40-35-111(e)(1). I have concluded that we should hold that the particular fine in this case is excessive via our sentencing law but that we may, and should, stop short of declaring the statutory provision unconstitutional. On de novo review, we should impose a fine of $3,000, as is authorized by Code section 55-50-504(a).

State of Tennessee v. Alvin Ray Taylor
M1999-2566-CCA-R3-CD
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge L. Craig Johnson

Alvin Ray Taylor was convicted by a jury of driving on a revoked license, second offense. The jury fixed his fine at $27,500. Taylor argues on appeal that the fine provisions of TENN. CODE ANN. § 55-50-504(a)(2) permit the imposition of a fine with no maximum limit violating the Eighth Amendment protection against excessive fines. After review, we find the penalty provisions of the statute, as it relates to the amount of fine which may be fixed, unconstitutional and the fine imposed in this case excessive. Accordingly, that portion of the judgment imposing a fine of $27,500 is vacated. The Appellant’s fine is modified to reflect a fine of $2,500 pursuant to TENN.CODE ANN. § 40-35-111 (e)(1) ( maximum authorized fine for class A misdemeanor).

State of Tennessee v. Marcus W. Keener
M2000-00177-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Robert L. Jones

The defendant was indicted for first degree murder and convicted by a Lawrence County jury of second degree murder. In this appeal as of right, the defendant presents two issues for our review: (1) whether the evidence was sufficient to support his conviction; and (2) whether the trial court erred in failing to charge the jury on the lesser-included offenses of criminally negligent homicide and reckless homicide. The trial court charged the jury as to first degree murder, second degree murder, and voluntary manslaughter. The defendant received a sentence of twenty years to be served at 100% in the Tennessee Department of Correction. Having reviewed the entire record, we conclude that the evidence was sufficient to convict the defendant of second degree murder. We further conclude that the trial court did not err in failing to instruct on two additional lesser-included offenses. The judgment of the trial court is affirmed.

State of Tennessee v. Marcus W. Keener - Concurring
M2000-00177-CCA-R3-CD
Authoring Judge: Presiding Judge Gary R. Wade
Trial Court Judge: Judge Robert L. Jones

While I concur in the result, I write separately because I believe that the trial court erred by failing to instruct the jury on the lesser included offenses of criminally negligent homicide and reckless homicide.