State of Tennessee v. Darrell M. Scales
M2000-03150-CCA-R3-CD
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge Seth W. Norman

The Defendant, Darrell M. Scales, was convicted by a jury of three counts of aggravated robbery and three counts of aggravated sexual battery. The trial court subsequently sentenced the Defendant to nine years on each of the robberies and to nine years on each of the sexual batteries. The court ordered the sentences to be run partially consecutive, for an effective sentence of twenty-seven years. In this appeal as of right, the Defendant raises the following five issues: (1) whether the trial court erred by refusing to suppress identification testimony; (2) whether the evidence is sufficient to support his convictions; (3) whether the trial court erred in failing to require the State to elect from two separate incidents of aggravated sexual battery against one of the victims; (4) whether the trial court erred in failing to charge the jury on lesser-included offenses of aggravated sexual battery; and (5) whether the trial court erred in ordering partially consecutive sentences. We hold that the trial court committed reversible error when it failed to require the State to elect offenses, and that it committed reversible error when it failed to instruct the jury on all lesser-included offenses of aggravated sexual battery. Accordingly, we reverse and remand for retrial the Defendant's convictions for aggravated sexual battery. In all other respects the judgment of the trial court is affirmed.

State of Tennessee v. Timothy Allen Moore
M2000-02933-CCA-R3-CD
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge Allen W. Wallace

The Defendant, Timothy Allen Moore, pled guilty to two counts of aggravated robbery, a Class B felony. The trial court subsequently sentenced the Defendant as a Range I standard offender to the minimum sentence of eight years on each count. The trial court ran the sentences concurrently to each other, but consecutively to a sentence the Defendant had received in another county. In this appeal as of right, the Defendant challenges the trial court's imposition of consecutive sentences. We affirm the judgment of the trial court.

Janet Jacobs, et al. v. Alvin Singh, M.D.
M2001-00697-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Don R. Ash
Defendant physician appeals judgment for Plaintiffs in a jury trial of a medical malpractice action. Upon review of the record, we do not find that Plaintiffs' case was time barred pursuant to the statute of limitations. We find material evidence in the record to support the verdict and a jury finding that medical expenses incurred by the Plaintiff were necessary and reasonable. We therefore affirm.

Jon Hall v. Bill McLesky, et al.
M2000-01857-COA-R3-CV
Authoring Judge: Judge Ben H. Cantrell
A death row inmate filed a Petition for Declaratory Judgment, claiming that employees of the Department of Correction had caused his attorney's phone number to be removed from an approved calling list, and had refused to restore the number to the list in a timely way. The inmate named seven employees of the Department and a private telephone company as defendants, and demanded monetary damages. The trial court dismissed the action, because the petitioner failed to comply with the mandatory requirements of the Uniform Administrative Procedures Act. Because we do not believe the petitioner was entitled to relief under any of the theories he advanced, we affirm the trial court.

Troi Bailey, Sprint Logistics& Sprint Warehouse & Cartage v. City of Lebanon
M2001-00641-COA-R3-CV
Authoring Judge: Chancellor Irvin H. Kilcrease, Jr.
Trial Court Judge: John D. Wootten, Jr.
This is an appeal by appellant, City of Lebanon, Tennessee (hereinafter "City of Lebanon") from an order of the trial court awarding damages to the appellee Troi Bailey (hereinafter "Mr. Bailey") and appellees Sprint Logistics, LLC and Sprint Warehouse and Cartage, Inc.(hereinafter collectively "Sprint"), resulting from a motor vehicle accident. We affirm the trial court.

Joe Morgan. v. Barbara Good (Grimes)
M2001-00683-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Don R. Ash
Plaintiffs filed suit against Defendant in order to determine the true boundary line and ownership of one-half acre of property adjacent to both Plaintiffs' property and Defendant's property. The trial court determined that the boundary line cut diagonally across the disputed property giving approximately one-quarter acre to Plaintiffs and one-quarter acre to Defendant. Plaintiffs appealed asserting that they are the true owners of the entire one-half acre and that the trial court was in error when it established the diagonal boundary line splitting the disputed property. We agree with the trial judge's determination of the boundary line and affirm the chancery court's opinion.

Estate of Anthony Vanleer v. Sara Harakas
M2001-00687-COA-R3-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: Donald P. Harris
A default judgment was entered against Sara and Andre Harakas, the Appellants herein, in a dispute over defects in the construction of a residence. At the time the default judgment was entered, Mr. and Mrs. Harakas had not answered the complaint. Mr. and Mrs. Harakas filed a pro se motion to set aside the default judgment, arguing that they did not receive the notice of the motion for default judgment, which the trial court denied after a hearing that included testimony from Mrs. Harakas. Mr. and Mrs. Harakas then retained an attorney who filed a motion to alter or amend the refusal to set aside the default judgment and a second motion to set aside the judgment taken by default. The trial court denied these motions. Because there was reasonable doubt as to whether the default judgment should have been set aside, we reverse the trial court's refusal to set aside.

Beford County v. Joseph Bialik
M2001-00681-COA-R3-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: Lee Russell
A landowner appeals from a decision finding him in violation of county zoning laws, ordering him to take corrective measures, and enjoining future activities of the same type. Because the record before us does not include a transcript of the trial or a statement of the evidence, we must presume the evidence supported the trial court's findings and, consequently, affirm.

Vickie Bara v. Clarksville Memorial Health Systems, et.al
M2001-00682-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: James E. Walton
Parents of deceased child sued Clarksville Memorial Hospital and Dr. David Miller for the death of their child. They alleged this death occurred due to Defendants' mis-diagnosis of their daughter's injuries following an automobile accident and subsequent incorrect and negligent treatment. The jury returned a verdict for Defendants. Plaintiffs now appeal alleging two points of error in the jury instructions; (1) that it was error to charge the jury that Plaintiffs must prove causation to a reasonable degree of medical certainty and; (2) that it was error to charge the jury that they must find the child's death to be reasonably foreseeable. We find that the jury instructions on reasonable degree of medical certainty and foreseeability were incorrect statements of the law, confusing to the jury, and more probably than not, affected the jury's verdict. We thus reverse the judgment and remand for a new trial as to Defendant Miller. We affirm the judgment in favor of Clarksville Memorial Hospital.

Caroline Smith v. Mark Smith
M2001-00689-COA-R3-CV
Authoring Judge: Chancellor Irvin H. Kilcrease, Jr.
Trial Court Judge: Barry R. Brown
This is an appeal by appellant Caroline Elizabeth Smith from an order of the trial court which provided that the custody of the minor children of Caroline Elizabeth Smith and Mark O. Smith shall remain in the custody of Mark O. Smith. We affirm the trial court.

Caroline Smith v. Mark Smith
M2001-00689-COA-R3-CV
Authoring Judge: Chancellor Irvin H. Kilcrease, Jr.
Trial Court Judge: Barry R. Brown
This is an appeal by appellant Caroline Elizabeth Smith from an order of the trial court which provided that the custody of the minor children of Caroline Elizabeth Smith and Mark O. Smith shall remain in the custody of Mark O. Smith. We affirm the trial court.

State of Tennessee v. Jeffrey K. Shaw
M2001-00563-CCA-R3-CD
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge J. Randall Wyatt, Jr.

On February 5, 2001, the Defendant, Jeffery K. Shaw, entered a plea of guilty to felony weapon possession. Pursuant to Rule 37 (b)(1)(i) of the Tennessee Rules of Criminal Procedure, the Defendant sought to reserve a certified question of law to be reviewed by this Court. In this appeal, the Defendant contends that the trial court erred in denying his motion to suppress evidence and statements obtained as a result of the Defendant's arrest in the home of a third party. We affirm the judgment of the trial court.

State of Tennessee v. Alfonzo E. Anderson
W2000-00737-CCA-R3-CO
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Chris B. Craft

Alfonzo E. Anderson appeals the Shelby County Criminal Court's denial of his petition for the writ of habeas corpus. He claims that the indictment charging him with first degree felony murder is insufficient to allege the offense because it does not allege a factual basis for the underlying felony, attempted aggravated robbery. Because we agree with the lower court that the indictment sufficiently alleges the crime of first degree felony murder, we affirm.

Gregory W. Clements v. State of Tennessee
W2001-00739-CCA-R3-PC
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge James C. Beasley, Jr.

The petitioner, Gregory W. Clements, pled guilty in the Shelby County Criminal Court to one count of second degree murder and was sentenced as a Range II offender to thirty-five years incarceration in the Tennessee Department of Correction. The petitioner filed a petition for post-conviction relief, alleging that his sentence is illegal. The post-conviction court dismissed the petition, due to the expiration of the applicable statute of limitations. The petitioner now appeals. Upon review of the record and the parties’ briefs, we affirm the judgment of the post-conviction court.

State of Tennessee v. Perdido Cook
W2001-00381-CCA-R3-CD
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge Bernie Weinman

The Appellant, Perdido Cook, was convicted by a Shelby County jury of especially aggravated robbery, aggravated robbery, and attempted aggravated robbery. The trial court sentenced Cook to serve 25 years for the especially aggravated robbery conviction, 8 years for the aggravated robbery conviction, and 3 years for the attempted aggravated robbery conviction. All sentences were to be served concurrently. On appeal, Cook raises the following issues for our review: (1) Whether the evidence is sufficient to support the convictions; and (2) whether the imposition of the maximum sentence of 25 years for especially aggravated robbery is justified in view of the trial court's misapplication of certain enhancement factors. After review, we find no reversible error and affirm the judgment of the trial court.

State of Tennessee v. Jarrett Sherrard Sibert
M2000-02807-CCA-R3-CD
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge Charles D. Haston, Sr.

The Defendant, Jarrett Sherrard Sibert, was convicted of attempted first degree murder by a Warren County jury. After a sentencing hearing on January 14, 2000, the trial court sentenced the Defendant as a Range I standard offender to 24 years in the Department of Correction. On appeal, the Defendant argues that (1) the evidence was insufficient to support the jury's verdict of guilty beyond a reasonable doubt and (2) the trial court improperly sentenced the Defendant. We affirm the judgment of the trial court.

VP Buildings, Inc., v. Polygon Group, Inc., et al.
M2001-00613-COA-R3-CV
Authoring Judge: Judge Patricia J. Cottrell
Trial Court Judge: Chancellor Carol A. Catalano

In this appeal the sole shareholder and director of Polygon appeals the trial court's decision to hold her personally liable for a debt owed by Polygon. The corporate officer contracted to do business in Tennessee, knowing that Polygon was not qualified to do business here and knowing that Polygon had not filed an annual report in three years, which made it subject to administrative dissolution. After suit was filed against Polygon, the shareholder encumbered all of the corporation's assets. Further, after she was sued personally, she filed to have Polygon's charter retroactively reinstated. The trial court held that the shareholder abused the corporate form, that the corporate entity should be disregarded and that the sole shareholder and director should be held personally liable. We affirm the decision of the trial court.

James Burks v. Williams Typesetting, Inc.
E2000-02532-WC-R3-CV
Authoring Judge: John K. Byers, Sr. J.
Trial Court Judge: Jeffery Franklin Stewart, Chancellor
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated _ 5-6- 225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The trial court found the employee had sustained a twenty-five percent permanent partial disability, based on the medical impairment of five percent, to her left arm. The trial court further held that Barker v. Home-Crest Corp., 85 S.W.2d 373 (Tenn. 1991) controlled and because March 24, 1998, was the last day the employee was able to work, the plaintiff insurer was liable for the employee's workers' compensation award. We affirm the judgment of the trial court. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Chancery Court Affirmed JOHN K. BYERS, SR. J., in which WILLIAM M. BARKER, J., and WILLIAM H. INMAN, SR. J., joined. Robert J. Uhorchuk, Chattanooga, Tennessee for the appellant, Travelers Insurance Company. Sarah C. Hardison Reisner and James L. May, Jr., Nashville, for the appellees, Lisa Fuson, et al. 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). Facts The employee, age thirty-six at the time of trial, has a high school diploma and some college credits. She served in the Army for six years as a health inspector before being honorably discharged. During her Army service, she learned basic computer skills in the Lotus and WordPerfect programs. She was employed by the parties' insured, Dunlap Industries, from November of 1993 until January of 1999. She sustained a gradually occurring injury_carpal tunnel syndrome_while employed with Dunlap Industries. During the time relevant to this case, Dunlap Industries was insured by two insurers. The defendant provided workers' compensation coverage to the employer from September 11, 1996 until September 11, 1997. The plaintiff provided coverage beginning September 12, 1997. The plaintiff's injury resulted in the filing of three claims and three First Report of Injury forms before surgery was performed on March 26, 1998. After both the first claim, filed on October 23, 1996, and second claim, filed on May 1, 1997, the employee was released by her treating physician and returned to work. The final claim was filed on September 5, 1997. The defendant insurer authorized surgery after the final claim and then denied coverage on April 23, 1998. The defendant insurer claims the date of injury was the last day the employee was able to work, that date being March 24, 1998_the date of surgery, which was outside of the workers' compensation policy issued by the company to cover claims for work-related injuries. The trial court found the employee had sustained a twenty-five percent permanent partial disability, based on the medical impairment of five percent, to her left arm. The trial court further held that Barker v. Home-Crest Corp., 85 S.W.2d 373 (Tenn. 1991) controlled and because March 24, 1998, was the last day the employee was able to work, the plaintiff insurer was liable for the employee's workers' compensation award. Medical Evidence Dr. John P. Nash, an orthopedic surgeon, testified by deposition. Dr. Nash first saw the employee on December 1, 1996, approximately six weeks after she began having symptoms. She complained of pain in her left elbow with occasional tingling in her small finger that began after she lifted a box at work. Dr. Nash diagnosed left lateral epicondylitis or "tennis elbow." He returned her to work on January31, 1997, after her symptoms improved. The employee was next seen in June of 1997 for additional elbow complaints. The employee was treated conservatively on several occasions for what Dr. Nash referred to as "flare ups." According to Dr. Nash, surgery was -2-

Kerry Joe Bradley v. State of Tennessee
M2000-02222-CCA-R3-PC
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Robert L. Jones

The petitioner appeals from the denial of his post-conviction relief petition. The trial court found that the petitioner failed to prove by clear and convincing evidence that his guilty plea was not voluntary or that he received ineffective assistance of counsel. The judgment from the trial court is affirmed.

State of Tennessee v. John D. Sneed
M2001-00591-CCA-R3-CD
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Judge Cheryl A. Blackburn

The defendant pled guilty in 1998 to delivery of over 0.5 grams of cocaine for an agreed fine of $2,000 and an eight-year sentence, as a Range I standard offender, with the manner of service of the sentence to be determined by the trial court. Following a sentencing hearing, the trial court denied alternative sentencing. In this appeal, the defendant contests this denial. After review, we affirm.

In The Matter Of: Allan Russell Burke v. Maureen Jo Burke
M2000-01111-COA-R3-CV
Authoring Judge: Judge David Farmer

This Court now amends its previous Opinion in the above styled case with respect to the following issues: (1) the date of Mr. Burke’s summer visitation; (2) the Judgment shall be amended to include a statement of  standard parenting orders pursuant to T.C.A. 36-6-101(a)(3); and (3) the assessment of costs for appeal.

State of Tennessee v. Livergest Mickens
W2000-03010-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Joseph B. Dailey

Defendant, Livergest Mickens, was convicted by a Shelby County jury of aggravated burglary, and theft of property under five hundred dollars in value. On appeal, Defendant challenges the sufficiency of the evidence to sustain the convictions. After a review of the record and applicable law, we affirm the judgment of the trial court.

State of Tennessee v. Paul C. Michael
W2000-03015-CCA-R3-CD
Authoring Judge: Judge Jerry L. Smith
Trial Court Judge: Judge Joseph H. Walker, III

On October 19, 2000, the appellant, Paul C. Michael, was convicted by a McNairy County jury of violating the provisions of Tennessee Code Annotated Section 55-10-616, a section of the Motor Vehicle Habitual Offender Act. On November 22, 2000, he was sentenced to two years incarceration suspended after service of ninety days. He brings this appeal claiming his conviction is invalid because the order declaring him an habitual motor vehicle offender was not properly entered pursuant to Tennessee Rule Civil Procedure 58. We hold that an individual must utilize the provisions of Tennessee Rule of Civil Procedure 60.02 to challenge an order declaring the individual an habitual motor vehicle offender. Because the appellant herein did not mount his attack on such an order pursuant to Rule 60.02 the appellant cannot obtain relief. Moreover, the unreasonable amount of time the appellant waited to mount his challenge after having actual notice of the order declaring him an habitual motor vehicle offender precludes relief pursuant to Rule 60.02. The judgment of the trial court is affirmed.

Kenneth W. Nesbitt v. State of Tennessee
W2001-00394-CCA-R3-CD
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge C. Creed Mcginley

The Defendant, Kenneth W. Nesbitt, was convicted of two counts of selling cocaine by a Carroll County jury and sentenced to eight years on each count to be served concurrently. He appealed his convictions and this Court affirmed the convictions and the sentences, and our supreme court denied the Defendant's application for permission to appeal. The Defendant then filed a petition for post-conviction relief alleging ineffective assistance of counsel. The trial court dismissed the petition. The Defendant now appeals to this Court alleging that the trial court erred in denying him relief. We affirm the judgment of the trial court.

State of Tennessee v. Jeffery Bowers
W2001-01374-CCA-R3-CD
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge Jon Kerry Blackwood

The Defendant, Jeffery Bowers, was convicted in the Circuit Court of Fayette County of speeding . He now appeals to this Court alleging that his conviction should be reversed due to a conflict of interest in the Somerville City Court. We affirm the judgment of the trial court.