Robert J. McCurley, Patricia G. McCurley, v. City of Jackson, Tennessee, Charles Farmer, and J.B.Glassman and wife, Brenda Glassman, and Harold Angus
02A01-9703-CV-00059
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Judge Whit A. Lafon

This is an action in negligence arising out of the June 1993 acts of the appellant, Harold Angus, in demolishing the “Glassman” building, located at 111 North Highland Avenue in Jackson, pursuant to a contract with the city. Angus’ demolition of the building, which had been declared condemned by the city code, is not disputed. Nor is it disputed that, as a result of the building’s demolition, damage was sustained to the building located adjacent thereto, identified as the “Carmen’s” building, and owned by the appellees, Robert J. McCurley and wife, Patricia G. McCurley.1 The two buildings shared a common “party wall.” At issue in this case is whether Angus was negligent in its demolition of the Glassman building so as to be held legally accountable to the McCurleys for the damages they sustained. The case proceeded to a trial by jury where, at the close of all proof, the trial court directed a verdict in favor of the appellees on the issue of liability.2 Angus has appealed challenging the correctness of the trial judge’s decision in this regard. For the reasons hereinafter stated, we reverse and remand for a new trial.

State of Tennessee vs. Buffy Twadell
01C01-9606-CR-00231
Authoring Judge: Judge Gary R. Wade
Trial Court Judge: Judge Jane W. Wheatcraft

The defendant, Buffy Mae Twadell, has been indicted on two counts of aggravated perjury. Tenn. Code Ann. § 39-16-703. The district attorney general denied the defendant's application for pretrial diversion. Thereafter, the trial court denied her petition for a writ of certiorari. In this extraordinary appeal made pursuant to Rule 10 of the Tennessee Rules of Appellate Procedure, the defendant insists that the district attorney general abused his discretion by the denial of pretrial diversion. We affirm the judgment of the trial court.

Phillip Pomeroy vs. State of Tennessee
01C01-9610-CR-00424
Authoring Judge: Judge Gary R. Wade
Trial Court Judge: Judge Walter C. Kurtz

The petitioner, Phillip W. Pomeroy, appeals the trial court's dismissal of his petition for  post-conviction relief. The single issue presented for review is whether the petition is barred by the statute of limitations.

State of Tennessee v. Tyrone Watkins
01C01-9610-CR-00433
Authoring Judge: Judge Gary R. Wade
Trial Court Judge: Judge Jane W. Wheatcraft

The defendant, Tyrone Watkins, was convicted on July 18, 1994, of two Class A misdemeanors. While allowing pretrial jail credit, the trial court imposed consecutive sentences of eleven months and twenty-nine days, the remainder of which was to be served on probation. On February 16, 1996, a warrant was issued which resulted in the revocation of probation. The question of law certified for review is whether the probationary term had expired prior to the commencement of the revocation proceeding. Rule 37(b)(2)(i), Tenn. R. Crim. P. We must reverse the judgment of the trial court; the cause is dismissed.

Dennis P. Neilan vs. State of Tennessee
03C01-9611-CC-00411
Authoring Judge: Judge William M. Barker
Trial Court Judge: Judge Rex Henry Ogle

The appellant, Dennis P. Neilan, appeals from the judgment of the Sevier County Circuit Court which dismissed, without hearing, his petition seeking postconviction relief. We affirm the trial court pursuant to Rule 20 of the Rules of the Tennessee Court of Criminal Appeals.

LBJ, Inc., D/B/A Laurel Wood Farm, a Tennessee Corporation, and Lawrence J. Banner, v. Buford L., Craig, Glen L. Craig, Southern Garden Designs, Inc., et al.
03A01-9706-CH-00243
Authoring Judge: Senior Judge William H. Inman
Trial Court Judge: Chancellor Howard N. Peoples

This is an action for damages for breach of contract involving the sale of the assets of a corporation doing business as North River Nursery in Chattanooga. The selling price was $370,000.00, to be paid $305,000.00 cash and $65,000.00 in seven (7) promissory notes, each of which provides “That all or a substantial portion of the debt evidenced hereby shall be paid by work to be performed . . . . . as set out in a letter . . . ”

William J. Bunch v. Walton I. Bunch and Steven B. Bunch
02A01-9705-CH-00106
Authoring Judge: Presiding Judge W. Frank Crawford
Trial Court Judge: Chancellor George R. Ellis

This case involves a suit to partition certain real and personal property owned by three brothers as joint tenants with the right of survivorship. Walton and Steven Bunch appeal the order of the trial court granting the sale for partition.

State of Tennessee vs. Ricky Krantz
01C01-9406-CR-00207
Authoring Judge: Judge Joseph M. Tipton
Trial Court Judge: Judge J. Randall Wyatt, Jr.

The defendant, Ricky Hill Krantz, appeals as of right from his conviction by a jury in the Davidson County Criminal Court for felony murder and aggravated assault, a Class C Felony. The defendant was sentenced to life imprisonment for the felony murder conviction and as a Range II, multiple offender to seven years in the custody of the Department of Correction for the aggravated assault conviction. The trial court ordered the defendant’s sentences to be served consecutively. The defendant contends that:

(1) the evidence is insufficient to support the first degree
murder conviction;
(2) the trial court erred by not dismissing the indictment due to
the state’s failure to preserve a blood sample taken from the
defendant on the evening of the offense;
(3) the trial court erred by not dismissing the indictment upon
grounds of fundamental fairness because the defendant
should not have been retried after a mistrial upon a theory that
was not relied upon by the state in the first trial; and
(4) the trial court erred by allowing the state to use a
peremptory challenge in a discriminatory manner in violation of
the Sixth and Fourteenth Amendments to the United States
Constitution and in violation of Article I, Section 9 of the
Tennessee Constitution.

We conclude that the evidence is sufficient and that the trial court did not err as the defendant claims. We affirm the trial court’s judgment of conviction.

State of Tennessee vs. Gerome J. Smith
01C01-9610-CR-00421
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Jane W. Wheatcraft

The Defendant, Gerome J. Smith, appeals as of right from a conviction of first degree murder following a jury trial in the Sumner County Criminal Court. Defendant was subsequently sentenced to life imprisonment. In this appeal, Defendant argues that the evidence is insufficient as a matter of law to allow a rational trier of fact to conclude that the Defendant committed premeditated firstdegree murder. We affirm the judgment of the trial co urt.

State of Tennessee vs. Robert Allen McKenzie
01C01-9701-CR-00008
Authoring Judge: Judge Joe B. Jones
Trial Court Judge: Judge Jane W. Wheatcraft

The issue which this court must resolve is whether the statute of limitations commences in an accessory after the fact prosecution when (a) the crime is committed or (b) the principal offender is convicted. The trial court found the statute of limitations does not commence until the principal offender is convicted. The defendant contends the statute of limitations commences when the crime of accessory after the fact is committed. After a thorough review of the record, the briefs submitted by the parties, and the law pertaining to the issue presented for review, it is the opinion of this court the statute of limitations commenced to run in this prosecution for accessory after the fact when the offense was committed. Therefore, the judgment of the trial court is reversed and the prosecution is dismissed since the prosecution was barred by the statute of limitations.

State vs. Tracy Stigall
02C01-9610-CR-00371
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Judge Arthur T. Bennett

Defendant, Tracey E. Stigall, was convicted by a Shelby County jury of the offense of aggravated burglary. The sole issue in this direct appeal is whether the trial court erred in failing to charge lesser offenses. We AFFIRM the judgment of the trial court.

Union Planters National Bank, as Executor and Trustee Under the Will of James A. LeRoy, Deceased, v. Betty Clair Reinhardt Dedman, John Dedman, Bernice A. LeRoy, Jill LeRoy Dimiceli, and Sue LeRoy Henderson, et al.
02A01-9701-PB-00026
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Judge Leonard D. Pierotti

Union Planters National Bank (“Bank”), as executor for the estate of James A. LeRoy (“Testator”), filed an action in the Probate Court of Shelby County for probate of Testator’s will on January 5, 1989. Bank subsequently filed suit for declaratory judgment against the beneficiaries and legatees of Testator’s property (“appellees”) alleging that the residuary estate provided for in Testator’s will to pay all death taxes was insufficient to cover his tax liability and seeking restitution from the appellees for their proportional share. Dedman appellees responded by contending that the post-death appreciation of residuary estate assets and the receipt of income from those assets had sufficiently increased the value of the residuary estate to enable it to sufficiently cover all death taxes requested by Bank. The Special Master appointed by the trial judge confirmed the sufficiency of the residuary estate on the date the taxes were due. The trial court entered judgment for appellees confirming the report of the Special Master finding that there was no shortfall in the residuary estate established by the testator in his will and thus rendering appellees not liable to Bank for reimbursement of death taxes in any amount. We find the decision of the lower court as to the issue of post-death income to the residuary trust to be in error and remand. Due to the complicated facts of this case and our determination that one issue in this case requires a remand to the lower court, we will only present the facts relevant to that issue.

State of Tennessee vs. Rogers L. McKinley
03C01-9612-CR-00455
Authoring Judge: Judge William M. Barker
Trial Court Judge: Judge Buddy D. Perry

The appellant, Rogers L. McKinley, appeals the Bledsoe County Criminal Court’s dismissal of his petition for a writ of habeas corpus. In 1990, the appellant entered guilty pleas and was convicted of two counts of rape and one count of aggravated burglary. The trial court sentenced the appellant as a Range II multiple offender to concurrent sentences of fifteen (15) years for each rape and ten (10) years for the aggravated burglary. No direct appeal was taken from those convictions and sentences.

In this appeal, the appellant contends that the trial court erred in dismissing his petition for a writ of habeas corpus without a hearing. Pursuant to Rule 20 of the Tennessee Court of Criminal Appeals, we affirm the judgment of the trial court.

Kohn Ashmore, b/n/f Angela Ashmore and Rodney Ashmore v. Hamilton County, Tennessee - Concurring
03A01-9706-CV-00201
Authoring Judge: Judge Don T. McMurray
Trial Court Judge: Judge Robert M. Summitt

The plaintiffs instituted this action against Hamilton County (defendant) charging that the defendant was negligent in maintaining Levi Road in that the county allowed shrubbery to grow along the right-of-way of Levi Road which impaired the vision of persons entering upon the roadway from adjacent properties. No roadway intersection was involved in the accident. The minor plaintiff, Kohn Ashmore, entered upon Levi Road from the lawn of property owned by a Mr. Sands. After a bench trial the trial court entered judgment in favor of the defendant. It is from this judgment that the plaintiffs' appeal. We affirm the judgment of the trial court.

Gerry Sue Hasek v. Donna Keene Holt and Gilreath and Associates
03A01-9706-CV-00210
Authoring Judge: Per Curiam
Trial Court Judge: Judge Wheeler Rosenbalm

This is a legal malpractice action. The Plaintiff alleges that she employed the defendants to reporesent her in a medical malpractice claim against Baptist Hospital of East Tennessee, Dr. Robert Hall or the proper party to be sued. Suit was brought against Baptist Hospital of East Tennessee and was, after mediation, eventually settled. Dr. Hall was not sued. The failure to bring an action against Dr. Hall is the basis of this action.

Suzanne Monique Swilley Ely v. Kenneth Ray Ely
03A01-9707-CH-00255
Authoring Judge: Special Judge Clifford E. Sanders
Trial Court Judge: Chancellor Fred D. McDonald

The pivotal issue on this appeal is whether or not the trial court erred in its calculation of the gross income of the obligor for determining his child support obligation.

William T. Rawls, v. N.V. Hodge, Norfolk Southern Railway Company, Inc., and James Moyer Massey
03A01-9707-CV-00293
Authoring Judge: Judge Don T. McMurray
Trial Court Judge: Judge Wheeler A. Rosenbalm

William T. Rawls (plaintiff) brought this action to recover damages resulting froma collision between a truck in in which he was a passenger and a train owned by Norfold Southern Railway Company. The truck was being driven by the defendant, James Massey. The train engineer was the defendant, N.V. Hodge. Rawls alleged that Norfolk Southern's locomotive was at the timeof the collison being operated in a negligent manner under the circumstances existing at the crossing where the accident took place.  He alleged that Hodge failed to give warning by blowing the train's whistle or horn, and that the crossing was not sufficiently marked by adequate warning devices. Rawls also sued Dycho Company, the owner of the land adjacent to to the rialway, alleging that a fence which Dycho had placed onits land, together with various structures and objects inside the fence, constituted a dangerous obstruction which blocked the view of the oncoming train.

Sandra Kay Cornelison v. Northwest Tn Economic Dev. Council
02S01-9704-CH-00035
Authoring Judge: Robert L. Childers, Special Judge
Trial Court Judge: Hon. Joe C. Morris
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 plaintiff sustained an injury to her back during the course of employment on March 1, 1994. Based on her age, education, lack of transferable job skills, the nature and extent of her injury, job opportunities for similarly injured workers and all other relevant vocational factors, the trial judge awarded her permanent partial disability benefits of 5% to the body as a whole. We find that the evidence preponderates against an award of 5% and in favor of an award of 25% permanent partial disability to the body as a whole and affirm the judgment of the trial court as modified. The plaintiff is a 42-year-old (39 at the time of the accident) female with a Child Development Associate's Certificate to work with young children. The plaintiff also has a cosmetology license. For some ten years prior to trial, the plaintiff was employed by the Madison County School System working with visually impaired students and CDC students at the local high school. At the time of the accident, and since, the plaintiff has sustained employment as an art teacher for four and five-year-old children in the Northwest Tennessee Head Start Program. This job entails lifting and squatting to manipulate and communicate with the children, as well as extended periods during which she must remain on her feet. On March 1, 1994 while attempting to move an art table in her classroom, the plaintiff experienced pain in her lower back which was initially diagnosed as a lower lumbar muscle strain. From March 23, 1994 through September 24, 1994 the plaintiff was seen by Dr. James Warmbrod who diagnosed the plaintiff as having a resolving lumbosacral sprain. The plaintiff was subsequently treated on October 21, 1994 by Dr. Jerry Engelberg, who found no significant abnormalities. Dr. Glen Barnett, a neurosurgeon, examined and treated the plaintiff from November 4, 1994, through August 12, 1996. Dr. Glen Barnett stated during the course of that treatment that he did not believe that surgery would decrease her pain. On April 1, 1996, Dr. Glen Barnett opined that the plaintiff had reached maximum medical

Kathy Reynolds v. Life Care Centered of America
02S01-9703-CV-00015
Authoring Judge: Robert L. Childers, Special Judge
Trial Court Judge: Hon. C. Creed Mcginley, 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 awarded the plaintiff 5% permanent partial disability to the right arm and 25% to the left arm. The trial court also awarded temporary total disability for the period between 6/3/95 and 1/16/96 (22 weeks) at the $152.24 compensation rate totaling $5,23.92 , medicals and mileage, future medical on arms only, attorney's fees in lump sum and discretionary costs. We affirm the judgment of the trial court. The plaintiff is a 55-year-old female with a tenth grade education. She has work experience in a factory and experience cleaning and working on boats. She started working for the defendant in 1993 as a certified nursing assistant. Plaintiff's duties for the defendant included making beds, feeding, shaving and bathing patients and turning them in their beds. These job activities require lifting, bending, and manipulating of the patients and the objects around them. On May 1, 1995, the plaintiff, while attempting to lift a patient into a chair with the aid of a fellow employee, fell forward striking her arm on the chair. She alleged that this accident caused damage to her neck, shoulder and right arm. The trial court did not find adequate proof to substantiate an injury to the neck. Only the questions of causation and the amount of permanent partial disability to the right and left arms are before us for review. The plaintiff testified that she complained of the injury to her right arm to her charge nurse on the date of the accident and again on the next day. The plaintiff testified on cross-examination that she first saw Dr. Portis to whom, she believes, she related the details of her accident. However, Dr. Portis' medical records do not reveal that the plaintiff informed him of the details of her accident. The plaintiff then saw Dr. Warmbroad on June 9, 1995. She admits that she did not tell him about the fall. In June of 1995, the plaintiff also saw Dr. Anthony Segal. She did not give a history of injury or trauma to her right arm to him. Dr. Segal thought that the carpel

Rutherford v. Cross
03S01-9611-CV-00114
Authoring Judge: John K. Byers, Senior Judge
Trial Court Judge: Hon. James B. Scott, Jr.,
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 plaintiff filed this workers' compensation claim on July 29, 1993, alleging that on April 15, 1991 he discovered that he was permanently and totally disabled from work due to coal workers' pneumoconiosis ["black lung disease"]. The defendants answered that the plaintiff had retired from their employ on February 6, 1991 under their regular old age retirement program and they had no information about any alleged work related disability. After a hearing on the merits, the trial court found the plaintiff "had not sustained his burden of proof of establishing his claim for occupational disease benefits arising out of his black lung condition" and dismissed the complaint. We affirm the judgment of the trial court. The plaintiff is now 69 years old. He has been receiving old age retirement benefits from the Social Security Administration and from the defendants since February 6, 1991. He has applied for black lung benefits from the U. S. Department of Labor on three occasions. Two of those applications were denied. The defendants sought, by Motion to Consider Post-Judgment Facts in this case, to have the results of the third Department of Labor adjudication admitted as evidence; however, the Motion was denied as inappropriate under RULE 14(a), TENN. R. APP. P. The plaintiff contends that the medical evidence proves that he was totally and permanently disabled from work at the time of his retirement under old age programs, notwithstanding the fact that he was working full-time up to the day he retired. To support this claim, he introduced at trial the medical evidence previously submitted to the Department of Labor in his black lung claims; his testimony and that of his wife; an independent medical evaluation by Dr. Glen Baker performed on October 6, 1993; and the testimony of Dr. Norman Hankins and Ms. Kelly Lenz, vocational experts who performed a vocational evaluation in October 1994. The thrust of plaintiff's argument for award of workers' compensation benefits is that the trial court and this Panel are required to apply federal standards in making our determinations and that under 2 C. F. R. _ 718.34, he is irrebuttably presumed 2

Craig Warrington v. Emerson Electric Co.
02S01-9703-CH-00024
Authoring Judge: Robert L. Childers, Special Judge
Trial Court Judge: Hon. George R. Ellis,
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 granted the defendant's "Motion to Dismiss" finding that the plaintiff had failed to carry his burden of proof of causation between the alleged work injury and the permanent impairment. We find that the evidence preponderates in favor of the trial court's decision and we affirm. The plaintiff alleged that "on or about" October 5, 1995 he sustained an injury when he twisted his neck and back, while running a press. Plaintiff was 42 years old at the time of the trial. He claimed that he had no pain or other problems with his neck and back prior to beginning work on October 3, 1995 at Emerson Electric Company. At approximately 1: a.m. on October 4, 1995, plaintiff claimed that he began experiencing pain in his neck and shoulder at which point he informed his supervisor, Jimmy Barber, that he was injured. The plaintiff did not receive medical attention at that time and continued to work the remainder of his shift on that day and the next. On Friday, October 5, 1995, plaintiff claims that he left a message on "the answering machine in the press room" that due to his pain he would not be at work and that he was going to see a doctor. Plaintiff first saw Dr. Tettleton, a chiropractor in Humboldt, on Friday, October 5, 1995. Dr. Tettleton performed a manipulation on the plaintiff to temporarily relieve his pain. The following Monday, at plaintiff's behest, Dr. Tettleton arranged an appointment with Dr. Dirk Franzen, a neurosurgeon in Jackson, Tennessee. Dr. Franzen examined plaintiff and recorded his statement that he "had woken up about a week ago with a crick in his neck." More important, Dr. Franzen noted that the history given to him by the plaintiff mentioned no definite inciting events and no injuries. Dr. Franzen subsequently performed surgery on the plaintiff at the C5-6 disc which improved, but did not resolve the symptoms. Dr. Franzen assessed plaintiff's impairment at 11%. Our review is de novo on the record accompanied by a presumption that the findings of fact made by the trial court are correct unless the evidence preponderates otherwise. TENN CODE ANN. _ 5-6-225(e). The plaintiff in a workers' compensation suit has the burden of proving every element of his case by a preponderance of the

Marvin McCarley and Ellyse McCarley v. West Food Quality Service d/b/a Kentucky Fried Chicken
02S01-9610-CV-00085
Authoring Judge: Justice Janice M. Holder
Trial Court Judge: Judge Jon Kerry Blackwood

The plaintiffs, Marvin and Ellyse McCarley, appeal the summary dismissal of their complaint alleging that Mr. McCarley received food poisoning after ingesting food improperly prepared by the defendant, Kentucky Fried Chicken. The trial court granted the defendant's motion for summary judgment. The Court of Appeals affirmed and held that the plaintiffs' proof was insufficient to establish the element of causation. We granted appeal to address: (1) the Court of Appeals' analysis in summary judgment dispositions; and (2) the quantum and type of proof plaintiffs must proffer to survive summary dismissal in negligent food poisoning cases. Upon review, we reverse and remand for further proceedings consistent with this opinion.1
 

Stateof Tennessee v. Michael Joe Boyd
02S01-9611-CR-00102
Authoring Judge: Justice Lyle Reid
Trial Court Judge: Judge Joseph B. McCartie

I dissent from the majority's holding that the jury's consideration of the invalid aggravating circumstance was harmless error.  Thos not every imperfection in the deliberative process is sufficient, even in a capital case, to set aside a ... judgement, the severity of the sentence mandates careful scrutiny in the review of any colorable claim of error.

State of Tennessee vs. Freddie King
02C01-9611-CR-00433
Authoring Judge: Judge Joe B. Jones
Trial Court Judge: Judge Leonard T. Lafferty

The appellant, Freddie King (petitioner), appeals as of right from a judgment of the trial court dismissing his action for post-conviction relief following an evidentiary hearing. In this court, the petitioner contends (a) his guilty pleas were not voluntarily, intelligently, and understandingly entered and (b) the trial court failed to advise him of his constitutional right against self-incrimination before questioning him during the submission hearing. After a thorough review of the record, the briefs submitted by the parties, and the law governing the issues presented for review, it is the opinion of this court that the judgment of the trial court should be affirmed.

State of Tennessee v. Michael Joe Boyd
02S01-9611-CR-00102
Authoring Judge: Chief Justice E. Riley Anderson
Trial Court Judge: Judge Joseph B. McCartie

The issue in this post-conviction death penalty appeal is whether the jury’s reliance on an invalid aggravating circumstance was harmless error, or whether resentencing is required because there is reasonable doubt that the sentence would have been the same had the jury given no weight to the invalid aggravating factor. The jury relied on a valid aggravating factor, that the defendant had a prior conviction for a violent felony offense (second-degree murder), and an invalid aggravating circumstance, that the victim was killed during the commission of a felony.1