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| In re: Rhoda Armster
M2000-00776-COA-R3-CV
This appeal involves a conservatorship action and an effort to set aside a will and related documents. Mrs. Armster executed a living trust, in which she named herself as the beneficiary during her life time. She also executed a will, which devised her entire estate to the trust and named The Bible Hygiene New Direction Training Center as beneficiary of the trust upon her death. Appellant, a child of Mrs. Armster, filed suit in Chancery Court and sought to: (1) have a conservator appointed for his mother to manage her legal and financial affairs; (2) have the trust and will set aside on the basis that his mother did not have sufficient mental capacity to execute the documents; and (3) have the will set aside because it was obtained as a result of undue influence. The trial court did not appoint a conservator and found that Mrs. Armster had the requisite mental capacity to execute the documents. Further, the court found that the will was valid as it was not the result of undue influence. We affirm the decisions of the trial court.
Authoring Judge: Presiding Judge Patricia J. Cottrell
Originating Judge:Robert L. Holloway |
Lawrence County | Court of Appeals | 10/25/01 | |
| Richard Johnson vs. Stoney Hunter
M2000-03099-COA-R3-CV
Authoring Judge: Sr. Judge William H. Inman
Originating Judge:Thomas W. Brothers |
Davidson County | Court of Appeals | 10/25/01 | |
| Richard Johnson vs. Stoney Hunter
M2000-03099-COA-R3-CV
Authoring Judge: Sr. Judge William H. Inman
Originating Judge:Thomas W. Brothers |
Davidson County | Court of Appeals | 10/25/01 | |
| State of Tennessee v. Jerry Lane Rubert
M2000-00914-CCA-R3-CD
A Maury County grand jury indicted the defendant, Jerry Lane Rubert, for two counts of aggravated kidnapping and three counts of especially aggravated rape. The defendant moved to suppress the evidence seized from his vehicle, as well as the evidence and statements derived from that seizure, on the grounds that the evidence was illegally seized. The trial court denied the defendant's motion, and at trial the prosecution introduced the evidence at issue. After the conclusion of this trial, a Maury County jury found the defendant guilty on all counts. The defendant now brings this appeal, challenging the trial court's denial of his motion to suppress. After reviewing the record and the applicable law, we find that the defendant's allegations do not merit relief, and therefore affirm his convictions.
Authoring Judge: Judge Jerry L. Smith
Originating Judge:Judge Robert L. Holloway |
Maury County | Court of Criminal Appeals | 10/25/01 | |
| Janie Lou Cobb v. Henry I. Siegel, Inc.
W2000-02656-WC-R3-CV
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel in accordance with Tenn. Code Ann. _ 5-6-225(e)(3) for hearing and reporting of findings of fact and conclusions of law. In this appeal, the employer contends the evidence preponderates against the trial court's award of permanent partial disability benefits based on 42 percent to the body as a whole. As discussed below, the panel has concluded the judgment should be affirmed. Tenn. Code Ann. _ 5-6-225(e)(3) (2) Appeal as of Right; Judgment of the Circuit Court Affirmed. JOE C. LOSER, JR., SP. J., in which JANICE M. HOLDER, J., and ROBERT L. CHILDERS, SP. J., joined. Jill A. Hanson, Nashville, Tennessee, for the appellant, Henry I. Siegel Company. Donald E. Parish, Huntingdon, Tennessee, for the appellee, Janie Lou Cobb. MEMORANDUM OPINION The employee or claimant, Cobb, is 57 years old with a high school education, but a low intelligence level, and no vocational training. She has spent her working career in production work and worked for the employer, Henry I. Siegel Company, for 33 years. It is undisputed she suffered a compensable low back injury on March 22, 1999. Because of the disability from that injury, she has not worked since the employer closed its factory on December 17, 1999. Following her injury, the claimant chose Dr. Claiborne Christian. Dr. Christian provided conservative care and ordered a magnetic resonance imaging scan (MRI). The MRI revealed a herniated nucleus pulposus on the left side. Dr. Christian estimated her permanent impairment at none, but referred her to a neurosurgeon, Dr. John Brophy. Dr. Brophy agreed with the diagnosis and produced a written report, but expressed no opinion as to the extent of the claimant's permanent impairment. She was referred to Dr. Robert Barnett, for examination and evaluation. Dr. Barnett estimated her permanent medical impairment from the injury to be 7 percent, using AMA guidelines. A vocational expert estimated her vocational impairment to be 95 percent, considering, among other things, the claimant's physical limitations.1 The claimant testified that she is unable to work. The trial judge, after making specific findings of fact as required byTenn. Code Ann. _ 5-6- 241, awarded permanent partial disability benefits based on six times the medical impairment rating or 42 percent. Appellate review is de novo upon the record of the trial court, accompanied by a presumption of correctness of the findings of fact, unless the preponderance of the evidence is otherwise. Tenn. Code Ann. _ 5-6-225 (e)(2). This tribunal is not bound by the trial court's findings but instead conducts an independent examination of the record to determine where the preponderance lies. Galloway v. Memphis Drum Serv., 822 S.W.2d 584, 586 (Tenn. 1991). Where the trial judge has seen and heard the witnesses, especially if issues of credibility and weight to be given oral testimony are involved, considerable deference must be accorded those circumstances on review, because it is the trial court which had the opportunity to observe the witnesses' demeanor and to hear the in-court testimony. Long v. Tri-Con Ind., Ltd., 996 S.W.2d 173, 177 (Tenn. 1999). The extent of an injured worker's vocational disability is a question of fact. Story v. Legion Ins. Co., 3 S.W.3d 45, 456 (Tenn. 1999). The appellant argues the medical evidence preponderates against the trial court's finding of permanency because he should have accepted the testimony of the treating physician, Dr. Christian. When the medical testimony differs, the trial judge must choose which view to believe. In doing so, he is allowed, among other things, to consider the qualifications of the experts, the circumstances of their examination, the information available to them, and the evaluation of the importance of that information by other experts. Orman v. Williams Sonoma, Inc., 83 S.W.2d 672, 676 (Tenn. 1991). Moreover, it is within the discretion of the trial judge to conclude that the opinion of certain experts should be accepted over that of other experts and that it contains the more probable explanation. Hinson v. Wal-Mart Stores, Inc., 654 S.W.2d 675, 676-7 (Tenn. 1983). From our independent examination of the record, we are not persuaded the trial court abused its discretion by accepting the opinion of Dr. Barnett. The appellant argues that the opinion of the vocational expert should have been ignored because it is based in part on information provided by the claimant as to her limitations. Notably, the claimant gave similar testimony to the trial judge, who expressly found her to be a truthful person. Trial courts have broad discretion to determine whether to accept or reject the opinion of a proffered expert. We find no abuse of that discretion in this case. The appellant argues the award is excessive because there is no medical evidence of 1 The claimant testified about her limitations, but none of the doctor s specifically prescribed any restrictions. -2-
Authoring Judge: Joe C. Loser, Jr., Sp. J.
Originating Judge:C. Creed Mcginley, Judge |
Henry County | Workers Compensation Panel | 10/24/01 | |
| State of Tennessee v. Frank C. Pease
E2000-02469-CCA-R3-CD
The defendant, Frank C. Pease, appeals his conviction for criminal contempt. The sole issue for our determination is whether the evidence was sufficient to support his conviction. Since the contempt finding was based upon defendant's anticipated, rather than actual, refusal to follow the court's order, we reverse the judgment of the trial court.
Authoring Judge: Judge Joe G. Riley
Originating Judge:Judge James B. Scott, Jr. |
Anderson County | Court of Criminal Appeals | 10/24/01 | |
| Eric Bernard Howard v. State of Tennessee
M2001-00405-CCA-R3-PC
The Defendant, Eric Bernard Howard, was convicted of two counts of aggravated robbery in the Criminal Court of Davidson County and sentenced to consecutive terms of seventeen years for each conviction. The Defendant now seeks post-conviction relief alleging that he was denied effective assistance of counsel. The trial court denied relief. We affirm.
Authoring Judge: Judge David H. Welles
Originating Judge:Judge Seth W. Norman |
Davidson County | Court of Criminal Appeals | 10/24/01 | |
| Donald Ray Pannell v. State of Tennessee
M2001-00675-CCA-R3-PC
The Appellant, Donald Ray Pannell, appeals from the dismissal of his petition for post-conviction relief. Pannell was convicted by a Marshall County jury of burglary, burglary of an automobile, and theft. He was sentenced as a Career Offender to eighteen years in the Department of Correction. On appeal, Pannell argues: (1) that the trial judge erred in not recusing himself from presiding over the case, and (2) that he received ineffective assistance of counsel. After review, we affirm the judgment of the post-conviction court dismissing the petition.
Authoring Judge: Judge David G. Hayes
Originating Judge:Judge W. Charles Lee |
Marshall County | Court of Criminal Appeals | 10/24/01 | |
| Edwin H. Madewell v. The Travelers Insurance Company
M2000-01793-WC-R3-CV
This workers' compensation appeal has been referredto the Special Workers' CompensationAppeals 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. In this appeal, the employer's insurer insists (1) the trial court erred in accepting the opinion of Dr. Ray Hester over that of Dr. Roger Zwemer as to the extent of the employee's permanent medical impairment, (2) the trial court erred in awarding permanent partial disability benefits in an amount that exceeds two and one- half times the medical impairment rating, (3) the trial court erred in awarding temporary total disability benefits, (4) the award of permanent partial disability benefits is excessive, (5) the defendant is entitled to a setoff, and (6) the trial court erred in commuting permanent partial disability benefits to a lump sum. As discussed below, the panel has concluded the award of temporary total disability benefits and the lump sum award should be modified, and a setoff allowed for payments made under an employer-funded disability plan, but the judgment otherwise affirmed. Tenn. Code Ann. _ 5-6-225(e) (2) Appeal as of Right; Judgment of the Chancery Court Affirmed as Modified. JOE C. LOSER, JR., SP. J., in which ADOLPHO A. BIRCH, JR., J., and JAMES WEATHERFORD, SR. J., joined. Robert J. Uhorchuk, Chattanooga, Tennessee, for the appellant, The Travelers Insurance Company. Robert S. Peters, Winchester, Tennessee, for the appellee, Edwin H. Madewell. MEMORANDUM OPINION The employee or claimant, Madewell, is 6 years old with a high school education and some college credits and electronics training. He worked for his employer as an instrument technician at Arnold Air Force Base from April 11, 1966 until 1999. He has computer skills and knowledge of both mechanical and electronic blueprints and can build and maintain instruments and machinery. His work required some physical activities. In August of 1998, the claimant felt a shooting pain in his left leg while at work. When the employer provided a list of physicians, he saw Dr. Zwemer and lost several days of work. Dr. Zwemer provided conservative care for several months and, finding no objective evidence of injury, estimated his permanent impairment at 5 percent to the body and returned the claimant to work. Upon returning to work, the pain recurred and he saw Dr. Bills, who ordered magnetic resonance imaging and referred him to Dr. Hester, a neurosurgeon. Dr. Hester diagnosed a disc herniation and assessed his permanent impairment at 1 percent to the whole person. Dr. Hester also prescribed permanent restrictions from bending from the waist while standing and from working with his arms out front. The restrictions prohibit him from working as an instrument technician. When he was unable to return to his job, the employer offered and the claimant accepted early retirement. The claimant testified at trial that he continues to suffer disabling pain and is unable to participate in hobbies or perform his former duties. The trial court awarded, inter alia, permanent partial disability benefits based on 4 percent to the body as a whole. Appellate review is de novo upon the record of the trial court, accompanied by a presumption of correctness of the findings of fact, unless the preponderance of the evidence is otherwise. Tenn. Code Ann. _ 5-6-225(e)(2). The reviewing court is required to conduct an independent examination of the record to determine where the preponderance of the evidence lies.
Authoring Judge: Joe C. Loser, Jr., Sp. J.
Originating Judge:L. Craig Johnson, Chancellor |
Coffee County | Workers Compensation Panel | 10/24/01 | |
| Richard Norton vs. Randy Eckman
W2001-00762-COA-R3-CV
The Plaintiff, an inmate in a correctional facility, has appealed the trial court's grant of Defendant's motion to dismiss for failure to state a claim upon which relief can be granted. We reverse the order of dismissal and remand to the trial court to dispose of the Plaintiff's summary judgment motion.
Authoring Judge: Judge David R. Farmer
Originating Judge:Jon Kerry Blackwood |
Hardeman County | Court of Appeals | 10/23/01 | |
| Ancro Finance vs. Kevin Johnson vs. Dyncorp
W2000-02709-COA-R3-CV
This appeal involves the dismissal of a petition for writs of certiorari and supersedeas brought by a garnishee in circuit court. After the garnishee failed to attend a hearing in general sessions court, a final judgment was entered. Instead of appealing the judgment as a matter of right to the circuit court, the garnishee petitioned the court for writs of certiorari and supersedeas. The circuit court dismissed the garnishee's petition. Because the garnishee failed to show proper grounds for writs of certiorari and supersedeas in lieu of an appeal, we affirm the decision of the circuit court.
Authoring Judge: Presiding Judge Alan E. Highers
Originating Judge:John R. Mccarroll, Jr. |
Shelby County | Court of Appeals | 10/23/01 | |
| Judith Thomas vs. William Thomas
E2001-00191-COA-R3-CV
This is a post-divorce proceeding. Judith R. Thomas ("Mother") filed a petition for contempt and for an increase in child support. William A. Thomas ("Father") answered and filed a counterclaim, seeking a decrease in his support obligation. Following a bench trial, the court below determined that while Father had failed to comply with some of the provisions of the parties' marital dissolution agreement ("MDA"), his failure to comply was not willful; therefore, the court declined to hold him in contempt. The court also held that Father's child support obligation should not be changed. Both parties raise issues on this appeal. We affirm.
Authoring Judge: Judge Charles D. Susano, Jr.
Originating Judge:Dennis W. Humphrey |
Roane County | Court of Appeals | 10/23/01 | |
| Bill Campbell, Executor, vs. Blount Memorial Hospital
E2001-00717-COA-R3-CV
Patient sustained injuries in defendant's emergency room. The Trial Court granted a Tenn. R. Civ. P. Rule 41.02(2) Motion to defendant. Plaintiff appealed. We affirm.
Authoring Judge: Presiding Judge Herschel P. Franks
Originating Judge:W. Dale Young |
Blount County | Court of Appeals | 10/23/01 | |
| Mickey Joe Hall vs. Kimberlie Kae Davenport Hall
E2009-01889-COA-R3-CV
This is a post-divorce child support modification case. Kimberlie Kae Davenport Hall ("Wife") filed a petition against her former husband, Mickey Joe Hall ("Husband"), seeking an increase in child support. Wife's petition, filed October 23, 2001, was followed by numerous hearings before special masters over the course of several years. The masters filed reports from each of the hearings, all of which were objected to by one or both of the parties. Interspersed among the masters' hearings, the trial court addressed various matters including the issue of child support. On January 23, 2009, the trial court held a hearing at which it ruled that the Income Shares formula for calculating child support under the Child Support Guidelines ("the Guidelines") as they existed at the time of the hearing, i.e., on January 23, 2009, was applicable to the calculation of support for the period from November 1, 2001, forward. The final order being appealed by Wife applied the formula and determined that Husband had overpaid his child support by $27,377.25. The court allowed Wife certain offsets which reduced the final judgment against Wife to $24,810.65. We affirm in part and vacate in part and remand for an upward modification of Husband's support due to a "hardship" imposed on Wife by the rigid application of the Income Shares formula.
Authoring Judge: Charles D. Susano, Jr., J.
Originating Judge:Michael W. Moyers, Chancellor |
Knox County | Court of Appeals | 10/23/01 | |
| Thelma Smith vs. David Riley
E2001-00828-COA-R3-CV
The plaintiff, Thelma Agnes Smith, lived with the defendant out of wedlock for several years. When the relationship ended, she brought this action seeking to enforce two written agreements with him regarding the sale and assignment of property to her. The trial court enforced the agreements and divided the parties' property. The defendant appeals, arguing that the agreements lack consideration and are void as against public policy. We affirm.
Authoring Judge: Judge Charles D. Susano, Jr.
Originating Judge:Jerri S. Bryant |
Monroe County | Court of Appeals | 10/22/01 | |
| In re: Z.C.G.
M2000-02939-COA-R3-CV
This case involves a request for termination of parental rights and adoption of a minor child. Appellees/Petitioners are the mother of the minor child at issue and her current husband. They petitioned for termination of the natural father's parental rights and for adoption by her current husband. The trial judge granted their petition finding that the father had abandoned his child by willfully failing to visit for four months preceding the filing of the petition and that termination of parental rights was in the best interest of the child. We find that the evidence did not clearly and convincingly demonstrate that the father willfully failed to visit and, thus, reverse the trial court.
Authoring Judge: Judge William B. Cain
Originating Judge:Tom E. Gray |
Sumner County | Court of Appeals | 10/22/01 | |
| In re: Estate of William D. Neely
M2000-01144-COA-R3-CV
The trial court set aside a will that was executed shortly before the testator's death, on findings of confidential relationship, suspicious circumstances and undue influence. We affirm.
Authoring Judge: Judge Ben H. Cantrell
Originating Judge:Robert E. Corlew, III |
Rutherford County | Court of Appeals | 10/22/01 | |
| Frederic R. Harris, Inc. vs. Metro Gov. of Nashville/Davidson County
M2000-02421-COA-R3-CV
Plaintiff sued for payments under contract. The Trial Court held defendant was not liable for additional payments under the contract. We affirm.
Authoring Judge: Presiding Judge Herschel P. Franks
Originating Judge:Carol L. Mccoy |
Davidson County | Court of Appeals | 10/22/01 | |
| Susan Vermillion vs. Guy Vermillion
E2001-00241-COA-R3-CV
Guy Houston Vermillion, an inmate in the State's penal system, appeals a judgment of the Chancery Court for Johnson County which awarded his wife a divorce. He insists that he was entitled to be present and present his defense, particularly as it applies to the division of property. We vacate the judgment and remand the case for the Trial Court to make a determination of whether it is appropriate to stay disposition of the case pending Mr. Vermillion's release.
Authoring Judge: Judge Houston M. Goddard
Originating Judge:Thomas J. Seeley, Jr. |
Johnson County | Court of Appeals | 10/22/01 | |
| E2001-00150-COA-R3-CV
E2001-00150-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Originating Judge:Telford E. Forgerty, Jr. |
Cocke County | Court of Appeals | 10/19/01 | |
| State of Tennessee v. Michael Blackburn
M2000-01202-CCA-R3-CD
The defendant appeals his convictions for first degree premeditated murder, first degree felony murder, and aggravated robbery. He contends that (1) insufficient evidence exists to support his convictions; (2) the trial court erred by not allowing into evidence the guilty plea of co-defendant Dickerson; (3) the trial court erred by not allowing into evidence statements made by co-defendant Dickerson; and (4) the trial court erred in ordering consecutive sentences. After review, we affirm the judgment of the trial court.
Authoring Judge: Judge John Everett Williams
Originating Judge:Judge J. Curtis Smith |
Franklin County | Court of Criminal Appeals | 10/19/01 | |
| State of Tennessee v. Clarence N. Baird and Cathy M. Fisher
M2000-02314-CCA-R3-CD
This is a state appeal from the dismissal of an indictment based upon a violation of mandatory joinder Rule 8(a) of the Tennessee Rules of Criminal Procedure. The defendants, Baird and Fisher, and other individuals were first indicted on July 23, 1999, for aggravated gambling promotion. The indictment alleged the illegal activity occurred from August 1998 through December 1998. On October 18, 1999, the defendants pled guilty to aggravated gambling promotion. The defendants and other individuals were again indicted for aggravated gambling promotion on March 21, 2000. This indictment alleged the illegal activity occurred from January 1999 through June 1999, which was prior to the return of the first indictment. The trial court dismissed the second indictment, finding that it violated Rule 8(a) requiring joinder. After a thorough review of the record, we affirm the judgment of the trial court.
Authoring Judge: Judge Joe G. Riley
Originating Judge:Judge Seth W. Norman |
Davidson County | Court of Criminal Appeals | 10/19/01 | |
| Parrish L. Jones v. James M. Davis, Warden
M2000-02252-CCA-R3-PC
The petitioner, Parrish L. Jones, appeals the denial of his petition for writ of habeas corpus, claiming that his sentences are illegal and void. Because the convicting court had no jurisdiction to impose an agreed upon sentence in excess of the statutory limits, the judgment is reversed and the cause is remanded for the grant of habeas corpus relief.
Authoring Judge: Presiding Judge Gary R Wade
Originating Judge:Judge Robert L. Jones |
Wayne County | Court of Criminal Appeals | 10/19/01 | |
| State of Tennessee v. Vincent Hatch
W2000-01005-CCA-R3-CD
One day before his scheduled jury trial for first degree murder, the appellant sought and was granted the right to represent himself. He now appeals from his conviction by a Shelby County jury for the offense of first degree murder, asserting that the convicting evidence was insufficient and that the trial court denied him his constitutional right to the assistance of counsel. We affirm the judgment of the trial court.
Authoring Judge: Special Judge Cornelia A. Clark
Originating Judge:Judge John P. Colton, Jr. |
Shelby County | Court of Criminal Appeals | 10/19/01 | |
| State of Tennessee v. Alan Leonard Smith
E2000-01891-CCA-R3-CD
The Defendant was convicted of driving under the influence (D.U.I.) second offense, sentenced to fifty days in jail, and ordered to pay a $2,500.00 fine. The Defendant now appeals, arguing the following: (1) that there was insufficient evidence to convict him of D.U.I., (2) that the trial court erred in admitting the breath alcohol results, and (3) that the trial court erred in not granting a new trial based upon newly discovered evidence. Finding no error, we affirm the judgment of the trial court.
Authoring Judge: Judge Robert W. Wedemeyer
Originating Judge:Judge James B. Scott, Jr. |
Anderson County | Court of Criminal Appeals | 10/19/01 |