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| State of Tennessee v. Demetrius Holmes - Dissenting
E2000-02263-CCA-R3-CD
I respectfully dissent. I agree with the majority opinion that the granting or denial of a mistrial is a matter within the sound discretion of the trial court and that a trial court should grant a mistrial only when it is of “manifest necessity.” I would add that the burden of establishing a “manifest necessity” is upon the appellant. State v. Williams, 929 S.W.2d 385, 388 (Tenn. Crim. App. 1996).
Authoring Judge: Judge Robert W. Wedemeyer
Originating Judge:Judge Richard R. Baumgartner |
Knox County | Court of Criminal Appeals | 06/26/01 | |
| State of Tennessee v. Eric D. Thomas
W1999-00337-CCA-R3-CD
The Defendant, Eric D. Thomas, pled guilty to four counts of robbery and was sentenced to six years for each conviction. The sentences were ordered to run consecutively, which ruling the Defendant now appeals. The judgment of the trial court ordering the Defendant's sentences to run consecutively is reversed, and this matter is remanded for resentencing on the issue of consecutive sentences.
Authoring Judge: Judge David H. Welles
Originating Judge:Judge Joseph B. Dailey |
Shelby County | Court of Criminal Appeals | 06/26/01 | |
| Williamson County, et al. v. State Board of Equalization
M2000-03178-COA-R3-CV
In this case, a consortium of counties and cities appeals the decision of the Chancery Court of Davidson County upholding the action of the Tennessee State Board of Equalization in applying depreciable life schedules forming a part of Tennessee Code Annotated section 67-5-903(f) to commercial and industrial tangible personal property and in holding that personal property is not constitutionally required to be valued at its actual value in the implementation of Tennessee Code Annotated section 67-5-1509(a). The only issues before this court are the constitutionality of Tennessee Code Annotated section 67-5-903(f) and Tennessee Code Annotated section 67-5-1509(a). We hold both statutes to be constitutional and affirm the Chancellor.
Authoring Judge: Judge William B. Cain
Originating Judge:Ellen Hobbs Lyle |
Williamson County | Court of Appeals | 06/26/01 | |
| State of Tennessee v. Takeita M. Locke
E2000-00923-CCA-R3-CD
The defendant was convicted in the Knox County Criminal Court of especially aggravated robbery and felony murder. She timely appealed, arguing that the State had failed to show that statements she gave while a juvenile were admissible, that the trial court erred in not instructing as to lesser-included offenses or that the jury must find whether felony murder was a "natural and probable consequence" of especially aggravated robbery, and that the evidence was insufficient to sustain the convictions. Based upon our review, we affirm the judgments of the trial court.
Authoring Judge: Judge Alan E. Glenn
Originating Judge:Judge Richard R. Baumgartner |
Knox County | Court of Criminal Appeals | 06/25/01 | |
| Franklin Parton v. State of Tennessee
E2000-01511-CCA-R3-CD
The petitioner/appellant, Franklin Parton, filed a pro se "Petition for Writ of Habeas Corpus" in the Knox County Criminal Court, which was dismissed by the trial court without an evidentiary hearing. Petitioner filed a motion for reconsideration and for treatment of the petition as a petition for writ of error coram nobis. This motion was also summarily denied by the trial court. We affirm the judgment of the trial court.
Authoring Judge: Judge Thomas T. Woodall
Originating Judge:Judge Ray L. Jenkins |
Knox County | Court of Criminal Appeals | 06/25/01 | |
| Danny Middleton v. Porcelain Products Company
E2000-01464-WC-R3-CV
The employee appeals and contends the trial court erred (1) in finding his medical impairment to be eleven percent instead of eighteen percent to the body, (2) in concluding that he has employment opportunities available locally, and (3) in failing to consider economic feasibility in determining local employment opportunities. We affirm the judgment of the trial court.
Authoring Judge: Howell N. Peoples, Special Judge
Originating Judge:Daryl Fansler, Chancellor |
Knox County | Workers Compensation Panel | 06/25/01 | |
| State of Tennessee v. Kenneth S. Griffin
E2000-02471-CCA-R3-CD
Defendant, Kenneth Griffin, was found guilty of burglary (Class D) and theft (Class D) following a bench trial. He was sentenced as a career offender on each conviction to twelve (12) years incarceration, and the sentences were ordered to be served consecutively. The Defendant, with counsel, appealed the conviction raising the sole issue of the sufficiency of the evidence. This court affirmed. State v. Kenneth S. Griffin, C.C.A. No. 03C01-9811-CR-00406, 1999 Tenn. Crim. App. LEXIS 1316, Knox County (Tenn. Crim. App., Knoxville, Dec. 27, 1999). Subsequently, Defendant timely filed a petition for post-conviction relief alleging, apparently among other issues, that he received ineffective assistance of counsel on appeal because appellate counsel did not raise as an issue the consecutive sentencing ordered by the trial court. The post-conviction court, in a written order, granted Defendant a "delayed appeal" as "authorized under TENNESSEE CODE ANNOTATED SECTION. 40-30-213." The post-conviction court's order limited the delayed appeal to the sole issue "of the correctness of [defendant's] sentence." However, the post-conviction court, while impliedly finding ineffective assistance of counsel for not raising the sentencing issue on direct appeal, made no finding that the Petitioner was prejudiced by the deficient representation. In any event, we find that the granting of a delayed appeal from the original conviction is not authorized by statute, and accordingly, this appeal from the sentence imposed in the original convictions is dismissed.
Authoring Judge: Judge Thomas T. Woodall
Originating Judge:Judge Ray L. Jenkins |
Knox County | Court of Criminal Appeals | 06/25/01 | |
| State of Tennessee v. Ricky Eugene Cofer
E2000-01499-CCA-R3-CD
The defendant, Ricky Eugene Cofer, was convicted of aggravated robbery. The trial court imposed a Range II sentence of 15 years. In this appeal of right, the defendant contends that his indictment for aggravated robbery was legally insufficient; that the evidence was insufficient to convict; and that his trial counsel was ineffective. The judgment is affirmed.
Authoring Judge: Presiding Judge Gary R Wade
Originating Judge:Judge James B. Scott, Jr. |
Anderson County | Court of Criminal Appeals | 06/25/01 | |
| Michael T. Burum v. Bnfl, Incorporated and Hartford
E2000-01383-WC-R3-CV
This workers' compensation appeal has been referred to the SpecialWorkers' 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 trial court awarded the plaintiff, who fell at work, permanentpartial disabilityof 5 percent to the left leg. We affirm the decision of the trial court. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Circuit Court is Affirmed JOHN K. BYERS, SR. J., in which E. RILEY ANDERSON, C. J., and ROGER E. THAYER, SP. J., joined. Robert R. Davies, Knoxville, Tennessee, for the appellants, BNFL, Inc. and Hartford Insurance Company. Roger L. Ridenour, Clinton, Tennessee, for the appellee, Michael T. Burum. MEMORANDUM OPINION Review of the findings of fact made by the trial court is de novo upon the record of the trial court, accompanied by a presumption of the correctness of the findings, unless the preponderance of the evidence is otherwise. TENN. CODE ANN. _ 5-6-225(e)(2). Stone v. City of McMinnville, 896 S.W.2d 548, 55 (Tenn. 1995). The application of this standard requires this Court to weigh in more depth the factual findings and conclusions of the trial courts in workers' compensation cases. See Corcoran v. Foster Auto GMC, Inc., 746 S.W.2d 452, 456 (Tenn. 1988). Plaintiff's History The plaintiff, thirty-nine years of age at the time of trial, is a high school graduate. He attended classes at Tennessee Technical Institute and the University of Tennessee where he studied computer science. The plaintiff also served for eight years in the United States Armed Forces working in communications, computers, radios and electrical repair. The plaintiff's job history consists of work as a machine operator, a service desk employee and a paper technician with a large paper manufacturer. The plaintiff worked for the defendant, who contracted with the K-25 facility for waste management, as a waste management employee. On November 2, 1998, the plaintiff was carrying out his duties for the defendant when he fell and twisted his knee. The plaintiff eventually underwent surgery on the left knee. He testified the knee still causes him problems, and he can no longer participate in activities or work as before the injury. Discussion The trial court's decision in this case appears to be based mainly on the testimony of the plaintiff. Where the trial judge has made a determination based upon the testimony of witnesses whom he has seen and heard, great deference must be given to that finding in determining whether the evidence preponderates against the trial judge's determination. See Humphrey v. David Witherspoon, Inc., 734 S.W.2d 315 (Tenn. 1987). When the trial judge sees and hears the witnesses, it is not for this Court to determine whether a witness has so far destroyed his credibility by inconsistent statements that the trial judge is unable to give credence to any of the witness' testimony. The trial judge's finding of fact in this regard is conclusive if there is any evidence to support it. Walls v. Magnolia Truck Lines, Inc., 622 S.W.2d 526 (Tenn. 1981). In this case, the trial court made no specific finding regarding the plaintiff's credibility or lack thereof. We find nothing in the record to undermine the trial court's decision to credit the testimony of the plaintiff. Both parties in this action agreed at trial that a worker does not have to show vocational disability or loss of earning capacity to be entitled to the benefits for the loss of use of a scheduled member. Duncan v. Boeing Tenn., Inc., 825 S.W.2d 416 (Tenn. 1992). However, the plaintiff may provide such proof to the court as a factor for the court to consider when determining loss of use. In this case, the plaintiff testified as to the loss of use of his leg. He stated he did not believe he could do jobs he had previously done; he also testified he could no longer participated in sports_baseball, basketball, softball_as he had previously done. The plaintiff testified he could neither sit nor walk for long periods of time without pain and told the trial court that the injury bothered him "pretty much all the time." The plaintiff's testimony is unrefuted; the defendants offered no rebuttal proof at trial regarding the plaintiff's testimony about his vocational prospects -2-
Authoring Judge: John K. Byers, Sr. J.
Originating Judge:James B. Scott, Judge |
Knox County | Workers Compensation Panel | 06/25/01 | |
| Hopewell Baptist Church vs. Southeast Window Mfg. Co., et al
E2000-02699-COA-R3-CV
Hopewell Baptist Church brought suit against defendant Southeast Window Mfg. LLC., alleging that it was a successor corporation and liable under a contractual warranty given by its predecessor. The Trial Court ruled that the defendant was a successor corporation and had expressly or impliedly assumed the obligations under its predecessor's warranty through the acts of its agent. We reverse.
Authoring Judge: Judge David Michael Swiney
Originating Judge:W. Dale Young |
Blount County | Court of Appeals | 06/25/01 | |
| Jerry Brooks vs. Melissa Ibsen, et al
E2000-02870-COA-R3-CV
Jerry Brooks ("Plaintiff") contracted with Joe Ibsen d/b/a Century Wholesale Pool Supply, Inc. ("Defendant"), for the installation of a swimming pool. Plaintiff received a limited warranty. After the swimming pool developed several cracks and the parties could not reach agreement on the proper way to repair the pool, Plaintiff had the pool repaired in the manner recommended by an engineer he had retained. This lawsuit followed. The Trial Court awarded Plaintiff $61,531.28 in damages. We reduce the judgment to $51,371.28 and affirm as modified.
Authoring Judge: Judge David Michael Swiney
Originating Judge:Billy Joe White |
Union County | Court of Appeals | 06/25/01 | |
| Tonya Sexton vs. Hartco Flooring Co.
E2000-02489-COA-R3-CV
The Trial Court granted defendant summary judgment on plaintiff's claims of sexual harassment and retaliatory discharge from employment. On appeal, we affirm judgment on the sexual harassment claim, but vacate and remand on claim of retaliatory discharge.
Authoring Judge: Presiding Judge Herschel P. Franks
Originating Judge:Billy Joe White |
Scott County | Court of Appeals | 06/25/01 | |
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Supreme Court | 06/25/01 | ||
| Johnson City, TN vs. Steven Taylor & Elease Taylor
E2000-02491-COA-R3-CV
In this condemnation action, defendants attempted to appeal during pendency of the action in the Trial Court. This Court determined there was no basis to treat the issue as either an interlocutory appeal or extraordinary appeal, and dismissed appeal.
Authoring Judge: Presiding Judge Herschel P. Franks
Originating Judge:Jean A. Stanley |
Washington County | Court of Appeals | 06/25/01 | |
| Shirley Breeding vs. Robert Edwards, et al
E2000-01900-COA-R3-CV
We are asked to decide whether the Supreme Court's decision in the case of Brown v. Wal-Mart Discount Cities, 12 S.W.3d 785 (Tenn. 2000), is applicable to a case in which a plaintiff seeks to recover under the uninsured motorist provisions of its policy based upon the alleged negligence of an unknown motorist, the existence of whom is first asserted by a named defendant. In the instant case, a vehicle driven by the plaintiff Shirley Irene Breeding was struck by a vehicle driven by the defendant Robert Lewis Edwards and owned by the defendant Johnston Coca Cola Bottling Group, Inc. ("Johnston"). She filed a complaint against these defendants within the period of the statute of limitations and secured the service of process upon her uninsured motorist ("UM") carrier, the appellee Farmers Insurance Exchange ("Farmers"). Outside the period of the statute of limitations, the defendants amended their answer to allege that an unknown motorist caused or contributed to the accident. Within 90 days, Breeding amended her complaint to add John Doe, i.e., the unknown driver, as a party defendant. Farmers moved to dismiss the claim against it. It relied on Brown, a slip and fall case. The trial court agreed with Farmers and dismissed Breeding's claim. Breeding appeals, asserting, inter alia, that Brown does not apply to the instant case. We reverse.
Authoring Judge: Judge Charles D. Susano, Jr.
Originating Judge:Wheeler A. Rosenbalm |
Knox County | Court of Appeals | 06/22/01 | |
| Harry M. Pack vs. Tina Lewin Ponak
M2000-02285-COA-R3-CV
The Lincoln County Circuit Court granted the appellee's motion for summary judgment allowing the sale of real property held as joint tenants with the right of survivorship. We find, however, that whether there is an agreement not to partition the property is a disputed question of fact. We reverse the trial court and remand for further proceedings in accordance with this opinion.
Authoring Judge: Judge Ben H. Cantrell
Originating Judge:Lee Russell |
Lincoln County | Court of Appeals | 06/22/01 | |
| Susan Wilson vs. Rushton Patterson
W2000-02771-COA-R3-CV
This is a medical malpractice case. Plaintiffs, husband and wife, sued defendant physician for injuries allegedly caused to wife by the physician's negligence. Physician moved for summary judgment supported by his affidavit that he conformed to the required standard of care. Plaintiffs, in opposition to the summary judgment, filed a deposition and affidavit of a physician practicing in Kentucky that expressed his knowledge of the standard of care in Memphis and similar communities. Physician moved to strike the affidavit primarily on the ground that plaintiffs' physician expert did not show a familiarity with the standard of care in Memphis, Tennessee. The court granted the motion to strike the affidavit and also granted summary judgment to defendant physician. Plaintiffs appeal. We reverse and remand.
Authoring Judge: Judge W. Frank Crawford
Originating Judge:James F. Russell |
Shelby County | Court of Appeals | 06/21/01 | |
| Betty Vestal vs. Thomas Lawler
W2001-00013-COA-R3-CV
Buyer, under warranty deed, sued seller for breach of warranty against encumbrances after receiving notice of trustee's sale pursuant to deed of trust encumbering the property. Seller answered the complaint and filed a third party complaint against the lawyer he retained to perform a title search, which search failed to show the deed of trust. The third party defendant filed a counter complaint against the seller. The trial court granted the buyer judgment on the pleadings against seller, dismissed seller's third party complaint, and granted third party defendant summary judgment against seller. Seller appeals. We reverse in part and modify in part.
Authoring Judge: Judge W. Frank Crawford
Originating Judge:Clayburn L. Peeples |
Gibson County | Court of Appeals | 06/21/01 | |
| Berta Lee vs. Daniel Lee
W2000-01918-COA-R3-CV
This is a divorce case in which wife/mother was awarded custody of the parties' only minor son. Husband/father, acting pro se, appeals the trial court's decision with regard to the award of custody, the division of a retirement account, and attorney fees. We affirm.
Authoring Judge: Judge W. Frank Crawford
Originating Judge:D. J. Alissandratos |
Shelby County | Court of Appeals | 06/21/01 | |
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Supreme Court | 06/21/01 | ||
| Judith Greer vs. Edwin Greer
W2000-02881-COA-R3-CV
This appeal arises out of a divorce action filed by the parties in Benton County, Tennessee. Edwin Daniel Greer ("Husband") appeals the trial court's decision awarding the parties' marital residence to Judith Diane Greer ("Wife"), ordering Husband to pay rehabilitative alimony for four years, and awarding attorney's fees to Wife. We reverse the trial court's decision awarding the marital residence and the adjoining 9.4 acres to Wife and remand for further action by the trial court. We affirm the trial court's decision awarding Wife rehabilitative alimony and an attorney's fee of $3,000.00. We remand the case to the trial court for the amount and duration of rehabilitative alimony.
Authoring Judge: Judge Robert L. Childers
Originating Judge:Ron E. Harmon |
Benton County | Court of Appeals | 06/21/01 | |
| Melissa Jane (Nichols) Steen vs. Evans Harrington Steen
M2000-00313-COA-R3-CV
In this custody case the General Sessions Court of Wilson County changed its custody order from joint care and control with primary custody in the father to exclusive custody in the father and standard visitation to the mother. The record shows, however, that the mother has had primary custody of the children since the divorce and that both parties are fit parents. They each love the children and take good care of them. Under those circumstances, we hold that there is a presumption in favor of continuity of placement. Therefore, we reverse the lower court's order and grant primary custody to the mother.
Authoring Judge: Judge Ben H. Cantrell
Originating Judge:Ben H. Cantrell |
Wilson County | Court of Appeals | 06/21/01 | |
| Donald Andrews vs. Barbara Andrews
M2000-00163-COA-R3-CV
In this post-divorce case, each party sought modification of the child support order. The obligor father sought a decrease based on the older child's eighteenth birthday and graduation from high school. The obligee mother sought an increase based upon her belief that the father's income had increased. The trial court ordered a decrease based upon the older child's emancipation, but increased the amount due for the remaining minor child. The mother appeals, contending that the trial court failed to consider some of the father's work related benefits when setting the support. Because the mother had the burden of proving additional income to the father, and because she failed to meet that burden, we affirm the trial court.
Authoring Judge: Presiding Judge Patricia J. Cottrell
Originating Judge:Tom E. Gray |
Sumner County | Court of Appeals | 06/21/01 | |
| Ronald Robinette vs. Mark Johnson
M2000-01514-COA-R3-CV
This appeal involves a dispute over a promissory note. The jury below found for the Plaintiff. We affirm the trial court and remand for a determination of reasonable attorneys' fees incurred by Plaintiff with respect to this appeal.
Authoring Judge: Presiding Judge Alan E. Highers
Originating Judge:Tom E. Gray |
Sumner County | Court of Appeals | 06/21/01 | |
| Christopher Farley vs. Carrolle Farley
W2000-01987-COA-R9-CV
This appeal involves a change of custody motion filed by Mother in the chancery court which had previously entered a divorce decree awarding joint custody of the minor child, with primary physical custody with Father. The chancery court dismissed the motion, holding that it had no jurisdiction to hear a change of custody motion by virtue of a previously filed petition in juvenile court to declare the child dependent and neglected, which petition was dismissed by the juvenile court. Mother was granted an interlocutory appeal. We vacate and remand.
Authoring Judge: Judge W. Frank Crawford
Originating Judge:George R. Ellis |
Crockett County | Court of Appeals | 06/21/01 |