Judith Ann Lesko v. Tennessee School Board, et al.
M2009-00060-WC-R3-WC
Authoring Judge: Senior Judge Jon Kerry Blackwood
Trial Court Judge: Judge W. Lee Russell

This workers’ compensation appeal has been referred to the Special Workers’ Compensation
Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated § 50-6-225(e)(3) for a hearing and a report of findings of fact and conclusions of law. The employee alleged that she had sustained a permanent disability as a result of a work-related injury to her lower back. The trial court ruled that she had no permanent disability. She has appealed, contending that the trial court erred in accepting the testimony of the treating physician over that of the evaluating physician. We find no error, and affirm the judgment.

Alisia Arias v. Duro Standard Products Company, et al.
W2008-02772-SC-R3-WC
Authoring Judge: Chief Justice Janice M. Holder
Trial Court Judge: Chancellor James F. Butler

The employee sought workers’ compensation benefits, contending that she had developed occupational asthma as a result of exposure to dust in the workplace. The employee offered into evidence the written report of a physician who performed an independent medical evaluation of the employee at the request of the employee’s attorney. The employer objected to the introduction of the report, contending that Tennessee Code Annotated section 50-6-235 is the exclusive method of introducing medical proof in workers’ compensation cases and that this statute permits the employer to depose the expert whose report is offered into evidence. Overruling the objection, the trial court admitted the report into evidence pursuant to Tennessee Rule of Evidence 803(6) and awarded workers’ compensation benefits to the employee based on the physician’s report. The employer appealed. We conclude that the trial court erred by admitting the evaluating physician’s report into evidence and that the remaining admissible evidence is insufficient to establish either causation or permanency. Accordingly, the judgment of the trial court awarding workers’ compensation benefits is vacated, and the complaint is dismissed.

Andrew Carter v. Quality Outdoor Products, Inc., et al.
W2009-00855-SC-R9-WC
Authoring Judge: Chief Justice Janice M. Holder
Trial Court Judge: Chancellor James F. Butler

The employee filed suit seeking workers’ compensation benefits and provided notice to the employer of his intent to rely at trial on a physician’s report generated pursuant to Tennessee Code Annotated section 50-6-235. The employer objected to the introduction of the medical report and notified the employee of its intent to depose the physician pursuant to the same section. The employer moved to exclude the medical report when it was unable to depose the physician. The trial court denied the employer’s motion to exclude the physician’s report but granted the employer permission to seek an interlocutory appeal. We hold that the physician’s unavailability to provide the deposition requested by the employer pursuant to section 50-6-235 renders the physician’s written report inadmissible. We further hold that the physician’s report is not admissible pursuant to Tennessee Rule of Evidence 804 as an exception to the hearsay rule. Accordingly, we reverse the trial court’s ruling and remand for further proceedings consistent with this opinion.

State of Tennessee v. Kenneth Ray Kilpatrick
M2009-00559-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Robert L. Jones

The defendant, Kenneth Ray Kilpatrick, appeals from his Wayne County Circuit Court jury conviction of simple possession of a Schedule IV controlled substance, a Class A misdemeanor. He claims on appeal that the evidence convicting him was legally insufficient. We disagree and affirm the judgment of the trial court.

State of Tennessee v. Randy Ralph
M2009-00560-CCA-R3-CD
Authoring Judge: Presiding Judge Joseph M. Tipton
Trial Court Judge: Judge Larry B. Stanley, Jr.

The Defendant, Randy Ralph, appeals from his conviction by a jury in the Circuit Court for Warren County for driving an unregistered vehicle, a Class C misdemeanor. The trial court sentenced the Defendant to serve thirty days in jail and imposed a fine of $50. On appeal, the Defendant contends that the evidence was insufficient to convict him, that he should have been convicted under a different Code section, that he was improperly tried in the circuit court for a small offense, and that he should not have been sentenced to jail. We affirm the judgment of the trial court.

Carol McKee-Livingston v. Mark Livingston
M2009-00892-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Joseph P. Binkley, Jr.

In an attempt to collect money due from her ex-husband on a judgment for back child support and spousal support, ex-wife had a writ of garnishment served upon a corporation making quarterly payments to the ex-husband under a settlement agreement. The issue on appeal is whether the January 30, 2008 garnishment notice attached payments due the ex-husband in May 2008. Because the corporation had a debt to the ex-husband at the time of the garnishment notice, although the debt was not payable until a later time, we have determined that the garnishment notice attached the May 2008 payment. Since the corporation made the May 2008 payment directly to the ex-husband, the corporation is liable to the ex-wife. We, therefore, reverse the decision of the circuit court.

Linda Kay Gaines, et ux. v. Leslie McCarter Tenney, et al.
E2008-02323-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Richard R. Vance

In a negligence action arising from an automobile accident, the original trial resulted in a jury
verdict in the amount of $10,000 for the plaintiff. The plaintiff then moved for a new trial, alleging juror misconduct. After reviewing a juror’s deposition testimony, the trial court ordered a new trial. A second jury trial and verdict resulted in a $30,000 judgment for the plaintiff. Following the second judgment, the defendants timely appealed the trial court’s order for a new trial. We hold that Tenn. R. Evid. 606(b) prohibits introduction of juror testimony concerning the deliberation process that does not fall under one of the three exceptions enumerated in the rule. The order for a new trial is reversed and the lawsuit remanded for enforcement of the original judgment.

Courtney Renee Goins vs. Jerry Wayne Gay
E2009-00272-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge J. Michael Sharp

Upon petition of the Mother, the trial court entered an order modifying a Texas child support order and changing the support in accordance with the Tennessee Child Support Guidelines. The Father appealed, contending that the trial court improperly assumed jurisdiction and without authority, modified the Texas court child support order. We reverse in part as to the modification of the Texas court order, affirm in part as to the name change request, and remand.

State of Tennessee v. Maurice Williams
W2008-01136-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Chris B. Craft

The defendant, Maurice Williams, was convicted of carjacking and aggravated robbery, both Class B felonies, and sentenced to consecutive terms of twenty-eight years and twenty-five years, respectively. On appeal, he argues that the trial court should have granted a new trial because of a variance between the allegations of the indictment and the trial proof; the proof was insufficient to sustain his convictions; and the trial court erred in application of an enhancement factor and ordering consecutive sentencing. Following review, we affirm the judgments of the trial court.

State of Tennessee v. Kenneth Ray Willis
W2008-01448-CCA-R3-CD
Authoring Judge: Judge J. C. McLin
Trial Court Judge: Paula L. Skahan

Lynda Beth Chandler-Camp v. State of Tennessee
W2008-02577-CCA-R3-PC
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Clayburn L. Peeples

The petitioner, Lynda Beth Chandler-Camp, appeals the post-conviction court’s summary dismissal of her petition for post-conviction relief, arguing that she made a prima facie showing of incompetence to toll the statute of limitations on the period for filing a petition for post-conviction relief. After review, we affirm the post-conviction court’s summary dismissal of the petition.

Wanda Banker v. George, David, Charles, Terry, and Clifford Foster, Nancy Shannon, Patrick Kirk, Carolyn Foster, as Gaurdian of Black Foster, Brandon Foster, Ashley Foster and Lyndall L. Daniel
W2009-00214-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Judge James F. Butler

This boundary dispute appeal involves an indispensable and necessary party. The plaintiff and the defendants own adjoining tracts of land in a rural area. After questions about their common boundary arose, the defendants hired a surveyor. The defendants’ surveyor
concluded that the common boundary lay further west than the plaintiff believed. The plaintiff filed a lawsuit seeking a judicial determination of the proper boundary and an award of damages for timber that the defendants had cut. After some delay, a bench trial was held. During the trial, surveyors for both parties testified that the trial court’s resolution of the boundary dispute could affect the owner of the parcel to the east of the defendants. After the trial, the trial court issued an order specifying where the boundaries of the defendants’ land should be staked out. After the boundaries were marked in accordance with the trial court’s order, the defendants filed a motion to reopen proof, arguing that the boundaries established
by the trial court encroached on land owned by the defendants’ neighbor to the east. The trial court denied the motion and rendered a final judgment. The defendants appeal. We vacate the trial court’s order, concluding that the landowner to the east of the defendant was an indispensable and necessary party and that the trial court erred in declining to join him as a
party once the proof indicated that the neighboring landowner could be affected by the resolution of the boundary dispute between the plaintiff and the defendants.

William Laurence Hardy, M.D. v. State of Tennessee, Department of Health, Division of Health Related Boards
M2009-00619-COA-R3-CV
Authoring Judge: Judge J. Steven Stafford
Trial Court Judge: Chancellor Russell T. Perkins

This is an appeal from the decision of the Chancery Court, reversing a decision of an
administrative judge. The administrative judge denied Appellant’s Motion to Dismiss, but
found the parties had entered into two separate agreements and ordered the parties to submit
an agreed order to the Medical Board for review. On appeal, the Chancery Court, in
reversing the decision of the administrative judge, found that the parties had not entered into
any agreements and that the administrative judge could not order the parties to enter into a
consent order. Appellant appeals from this decision, contending that the parties have entered
into two separate agreements and that due process requires this action be dismissed. Upon
review of the record, we find material facts in dispute. Therefore the administrative judge
erred in finding that the parties entered into two agreements, and the Chancery Court erred
in finding that the parties did not enter into any agreements. Further, we affirm the Chancery
Court in finding that the administrative judge erred in ordering the parties to submit an
agreed order to the Medical Board after the Appellee withdrew its consent. Affirmed in part,
reversed in part and remanded.

Robert Kent Drake, et al., v. Paula Mae Drake
E2009-00540-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Judge Thomas R. Frierson, II

Brothers of defendant mother brought this action to have a conservator appointed for their mother on the grounds that the mother suffered dementia, Parkinson's disease and other infirmities and was incompetent and unable to make decisions about her health and finances. Following trial, the trial court found there was clear and convincing evidence that the mother was disabled and in need of supervision, protection and assistance by means of a conservatorship due to her permanent mental incapacity. The sons were named as co-conservators of her person and estate. The attorney for the mother filed an appeal, and we affirm the Judgment of the trial court.

Raines Brothers, Inc., et al. v. Barry Wade Johnson
E2009-00607-WC-R3-WC
Authoring Judge: Justice Sharon G. Lee
Trial Court Judge: Chancellor Jerri S. Bryant

This workers’ compensation appeal has been referred to the Special Workers’ Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated section 50-6- 225(e)(3) for a hearing and report of findings of fact and conclusions of law. The employee, Barry Wayne Johnson, sought benefits for injuries he sustained in the course and scope of his employment with Raines Brothers, Inc. The employee fell fifteen to twenty feet into an air conditioning vent shaft at a construction site, shattering the left side of his pelvis and acetabulum. Following a course of treatment, the employee returned to work and was terminated after he informed his employer that he could not perform the light-duty work assigned to him due to residual and chronic pain. The trial court awarded permanent and total disability benefits. On appeal, the employer argues that the trial court erred in awarding permanent and total disability benefits. After careful review, the judgment of the trial court is affirmed.

Linda F. Seals v. H & F, Inc., et al - Dissenting
M2009-00330-SC-R23-CQ
Authoring Judge: Justice William C. Koch, Jr.
Trial Court Judge: Judge William J. Haynes, Jr.

This Court has accepted three questions certified by the United States District Court for the Middle District of Tennessee in accordance with Tenn. S. Ct. R. 23 that require us to determine how existing Tennessee law addresses certain questions involving the cremation of human remains. I regret that I am able to concur with the Court’s answers to only the second and third questions. I cannot concur with the Court’s answer to the first question because it overlooks that, by virtue of the definitive actions of the Tennessee General Assembly in 2000, the common-law right of sepulchre, recognized by this Court over eighty years ago, provides the basis for answering the question.

Linda F. Seals v. H & F, Inc., et al
M2009-00330-SC-R23-CQ
Authoring Judge: Justice Gary R. Wade
Trial Court Judge: Judge William J. Haynes

The defendants, a funeral home and a crematory operator, arranged for and conducted a cremation at the joint request of the decedent’s fiancée and his fourteen-year-old son. The decedent’s mother, who claims the entitlement to have directed the disposal of his body, filed suit in the United States District Court for the Middle District of Tennessee contending wrongful cremation and seeking damages under a variety of theories in tort. Three certified questions of state law have been presented to this Court for consideration. Our responses are as follows: (1) where decedent did not make a pre-mortem election for the method of disposal of his remains, a parent has a right of control superior to that of a fiancée or minor child; (2) while a minor may be an “heir” under the safe harbor provisions for crematory operators under our statute, reliance on the instructions of a minor may qualify as so reckless as to subject the operator to liability; and (3) a funeral home that merely makes arrangements for a cremation and contracts for another party to perform the cremation is not the operator of a crematory facility for purposes of the statutory safe harbor.

State of Tennessee v. Michael D. Sweat
E2008-00423-CCA-R3-CD
Authoring Judge: Judge Joseph M. Tipton
Trial Court Judge: Judge Kenneth F. Irvine

The Defendant, Michael D. Sweat, was convicted by a jury in the Knox County Criminal Court of aggravated robbery, a Class B felony, and was sentenced by the trial court as a Range II, multiple offender to seventeen years in the Department of Correction. The Defendant appeals, contending (1) that the evidence is insufficient to support his conviction, (2) that he was denied his constitutional right to a fair trial when the State suborned perjury, (3) that the State impermissibly shifted the burden of proof to the Defendant when it questioned why additional alibi witnesses were not called, (4) that the trial court erred when it allowed the admission into evidence of his prior convictions, (5) that the trial court erred when it failed to allow the Defendant to poll the jury, and (6) that he was denied a fair trial because the verdict was based on juror misconduct. We affirm the judgment of the trial court.

State of Tennessee v. Tammy L. McDonald
E2008-02747-CCA-R3-CD
Authoring Judge: Presiding Judge Joseph M. Tipton
Trial Court Judge: Judge David Reed Duggan

The Defendant, Tammy L. McDonald, appeals her conviction upon a guilty plea in the Blount County Circuit Court for theft of property over $60,000, a Class B felony. Pursuant to a plea agreement, the Defendant received a Range I, ten-year sentence with the manner of service to be determined by the trial court. At the sentencing hearing, the trial court ordered the Defendant to serve the sentence in confinement. The Defendant appeals, contending that the trial court erred in denying alternative sentencing. We affirm the judgment of the trial court.

Nielsen Bainbridge, LLC v. Thomas Shinn
M2008-01639-WC-R3-WC
Authoring Judge: Justice William C. Koch
Trial Court Judge: Judge Clara Byrd

This workers’ compensation appeal has been referred to the Special Workers’ Compensation
Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. § 50-6-225(e)(3) (2008)
for a hearing and a report of findings of fact and conclusions of law. Employee suffered a hernia as a result of his work. The trial court awarded 28.5% permanent partial disability to the body as a whole. On appeal, Employer contends that the trial court erred in basing its award upon the
testimony of Employee’s evaluating physician. We agree, and consequently modify the judgment to 4.5% permanent partial disability to the body as a whole.

State of Tennessee v. Stephen Louis Young
W2008-01885-CCA-R3-CD
Authoring Judge: Judge J. C. McLin
Trial Court Judge: Judge C. Creed McGinley

A Decatur County jury found the defendant, Stephen Louis Young, guilty of one count of rape of a child, a Class A felony, and one count of aggravated sexual battery, a Class B felony. The court sentenced the defendant to twenty-five years for rape of a child to be served concurrently with twelve years for aggravated sexual battery at 100% in the Tennessee Department of Correction. On appeal, the defendant argues that (1) the district attorney’s comments during closing arguments constituted prosecutorial misconduct; (2) the trial court erred in sentencing the defendant; and (3) the trial court erred in ruling that the defendant’s confession was voluntary. Upon review, we affirm the judgments of the trial court.

Derek T. Payne v. State of Tennessee
W2008-02784-CCA-R3-PC
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge W. Mark Ward

The Petitioner, Derek T. Payne, appeals as of right the Shelby County Criminal Court’s denial of his petition for post-conviction relief. The Petitioner was convicted by a jury of second degree murder and attempted especially aggravated robbery, and he received an effective sentence of thirty-seven years. On appeal, he argues that the denial of his petition was error because he did not receive the effective assistance of counsel at trial or on appeal. Specifically, he contends that counsel failed to raise or challenge certain jury instruction issues, failed to fulfill promises made during the opening statement, failed to introduce evidence of the victim’s past conduct to show that the victim was the first aggressor, and failed to object to the State’s improper closing argument. Additionally, he contends that his sentence was unconstitutionally imposed based on Blakely v. Washington, 542 U.S. 296 (2004). Following our review of the record and the parties’ briefs, we conclude that the Petitioner has not shown that he is entitled to relief. The judgment of the post-conviction court is affirmed.

In Re: Tyrone A. Byrd, D/B/A A Alpha Bail Bond Agency v. State of Tennessee
W2009-01257-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge J. Weber McCraw

The appellant, Tyrone A. Byrd, acting pro se, appeals from an order revoking his right to issue bail bonds in the Twenty-Fifth Judicial District. On appeal, he argues that the trial court erred in suspending his right to issue bonds. After careful review, we affirm the order from the trial court.

State of Tennessee v. Abby L. Mills
W2009-02394-CCA-RM-CD
Authoring Judge: Judge J. C. McLin
Trial Court Judge: Judge Joseph H. Walker, III

This case is before the court upon the Tennessee Supreme Court’s remand for further consideration in light of its opinion in State v. Saine, 297 S.W.3d 199 (Tenn. 2009). The defendant, Abby L. Mills, was indicted by the Lauderdale County Grand Jury for possession of a Schedule II controlled substance, cocaine, with the intent to deliver; possession of a Schedule III controlled substance, Hydrocodone, with the intent to deliver; and possession of a Schedule VI controlled substance, marijuana, with the intent to deliver over .5 ounces. After a hearing, the trial court granted defendant’s motion to suppress evidence of items found in the defendant’s home. On appeal, the state asserted that the trial court erred in suppressing the evidence obtained as a result of a valid search warrant. This court initially affirmed the trial court’s suppression of evidence based on lack of probable cause to support the issuance of a search warrant. Upon review, we hold that the warrant to search the defendant’s home was supported by probable cause. We therefore reverse the judgment of the trial court.

Ricky Harris v. State of Tennessee - Concurring
E2005-00566-SC-R11-PC
Authoring Judge: Justice William C. Koch, Jr.
Trial Court Judge: Judge R. Jerry Beck

I concur with the Chief Justice’s conclusion that Mr. Harris is not entitled to coram nobis relief with regard to either of his newly discovered evidence claims. Her conclusion that the claim based on the evidence regarding the “Bill” letters is time-barred is correct. I cannot, however, concur in her conclusion that the claim based on the evidence regarding the alibi witness is likewise time-barred because Mr. Harris has made out a prima facie case for equitable tolling with regard to that claim. Apart from the question of the timeliness of these claims, I would affirm the trial court’s denial of coram nobis relief on both claims because of fatal substantive deficiencies in Mr. Harris’s petition for coram nobis relief.