State of Tennessee v. Joseph M. Stone
M2000-01321-CCA-R3-CD
Authoring Judge: Presiding Judge Gary R Wade
Trial Court Judge: Judge Cheryl A. Blackburn

The defendant, Joseph M. Stone, was indicted on six counts of burglary, three Class D felony thefts, two Class E felony thefts, and two misdemeanor thefts. After the defendant entered pleas of guilt to six counts of burglary and one Class E felony theft, the trial court imposed Range III sentences of 10 years on each burglary and five years on the theft. Because two of the sentences for burglary were ordered to be served consecutively, the effective sentence is 20 years. In this appeal of right, the defendant argues that the trial court had no authority to impose consecutive sentencing. The judgment is affirmed.

State of Tennessee v. Ammon B. Anderson
M2000-01183-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Allen W. Wallace

The defendant was indicted for aggravated sexual battery for engaging in sexual contact with a ten-year-old girl with Down's Syndrome. He filed a motion to dismiss the indictment, based on the loss of the tape recording of his interview with a Department of Children's Services caseworker and a police officer, and a motion to suppress his one paragraph statement of admission, consisting of the officer's summary of the interview. Following the trial court's denial of the motions, the defendant entered a plea of nolo contendere to attempt to commit aggravated sexual battery, reserving as a certified question of law, pursuant to Rule 37(b)(2)(i) of the Tennessee Rules of Criminal Procedure, whether the trial court erred in denying his motion to dismiss based on the loss of the tape recording of the interview. Arguing that the statement of admission is subject to misinterpretation when taken out of the context of the entire interview, the defendant contends that his right to a fair trial was compromised by the loss or destruction of the tape recording. After a thorough review of the record and of applicable law, we conclude that the loss of the tape recording did not unfairly prejudice the defendant's case. Accordingly, we affirm the defendant's conviction of attempt to commit aggravated sexual battery.

State of Tennessee v. Christopher Steven Nunley
M2000-00903-CCA-R3-CD
Authoring Judge: Presiding Judge Gary R Wade
Trial Court Judge: Judge Steve R. Dozier

The defendant, Christopher Steven Nunley, was convicted of contributing to the delinquency of a minor, a Class A misdemeanor. The trial court imposed a Range I sentence of 11 months and 29 days at 75%. In this appeal of right, the defendant challenges the sufficiency of the evidence. The judgment is affirmed.

Charles Montague vs. Michael Kellum
E2000-02732-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Thomas J. Seeley, Jr.
In this legal malpractice action, the Trial Court granted summary judgment to the Defendant, Michael D. Kellum ("Defendant"). Defendant submitted a Rule 56.03 statement and the affidavit of an expert witness in support of his motion. Charles Montague ("Plaintiff"), did not file either a Rule 56.03 response or a contravening affidavit. Prior to deciding Defendant's motion, the Trial Court stayed Plaintiff's discovery until it decided Defendant's motion. Plaintiff, who is incarcerated, had previously served discovery requests upon Defendant which had not been answered. Plaintiff appeals. We vacate the judgment of the Trial Court.

John Bates v. State of Tennessee
E2000-02354-CCA-R3-PC
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Stephen M. Bevil

The petitioner appeals pro se the summary denial of his third petition for post-conviction relief arising out of his 1982 conviction for first degree murder. He asserts that his trial counsel and previous post-conviction counsel rendered ineffective assistance of counsel in that they did not raise the issue of the trial court's failure to instruct the jury as to the defense of alibi. We conclude this petition is barred by the applicable statute of limitations. Therefore, we affirm the post-conviction court's summary dismissal of this petition.

Martin E. Walker v. Howard Carlton,
E2001-00171-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: Thomas J. Seeley, Jr.

Douglas Williams v. Walden Security
M2000-01273-WC-R3-CV
Authoring Judge: Loser, Sp. J.
Trial Court Judge: Irving H. Kilcrease, Chancellor
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 of findings of fact and conclusions of law. In this appeal, the employer, Walden Security, insists (1) the injured employee was not a covered employee at the time of his accidental injury, (2) the award of permanent partial disability benefits is excessive, (3) the trial court erred in assessing statutory penalties, and (4) the trial court erred in commuting the award of permanent disability benefits to a lump sum. As discussed below, the panel has concluded the judgment should be affirmed.

State, ex rel Candace West vs. Glen Floyd, Jr.
M1999-00334-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Russell Heldman
In this case, the appellant, having signed a Marital Dissolution Agreement later incorporated into a divorce decree, seeks by Rule 60 motion to have a portion of the decree dealing with the paternity of a child conceived while the parties were married, and born after the parties were divorced, voided as against public policy. Blood tests have conclusively excluded the man who the appellant had an extramarital affair with, as the father of the child. The trial court dismissed the appellant's petition pursuant to Tenn. R. Civ. P. Rule 41 motion. On appeal, we reverse the Chancellor, remand this case for further proceedings in conformity with this opinion, and order the appellee to undergo blood tests to determine the parentage of the child.

Heirs of Neil Ellis vs. Estate of Virgie Mae Ellis
M1999-00897-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: David Loughry
This is a will case. The wife, as the husband's conservator, sold the couple's real and personal property and deposited the proceeds into a joint checking account and into investments in the wife's name only. The husband died, and the wife died less than one hundred twenty hours later. Both of their wills devised all of their property to each other. The wife's will was admitted to probate. The husband's heirs moved the trial court to apply provisions of Tennessee's Uniform Simultaneous Death Act to equally divide the proceeds of the couple's jointly held property between the husband and wife's separate estates. The trial court denied the motion, holding that the Act did not apply and that sole ownership of the proceeds from couple's real property, which was held as tenants by the entirety, vested in the wife upon the husband's death. The husband's heirs appealed. We affirm, finding that sole ownership of the proceeds from the couple's jointly held real and personal property vested in the wife upon the husband's death. We also find that the husband and wife's devises of any individually owned personal property would both lapse and the property, or its proceeds, would remain in each spouse's separate estate. We remand the case to the trial court to determine whether any of the personal property was owned individually, whether any such property was sold, and if so, the value of the property.

In re All Assessments, Review of ad valorum Assessments of Public Utility Companies 1998
M2000-03014-COA-RM-CV
Authoring Judge: Judge W. Frank Crawford
On remand from the Supreme Court, this Court was instructed to consider the factual issue of whether the action of the Board of Equalization reducing the appraised value of public utility tangible personal property for tax year 1998 caused the ratio of such property's appraised value to its market value to be equal to the ratio for tangible personal property within each local jurisdiction that is appraised and assessed by local taxing authorities. We find that there is substantial and material evidence to support the Board's action in reducing the appraised value for the tax year 1998 and that it resulted in an equal ratio for locally assessed personal property.

P.E.K. vs. J.M. & C.Y.M.
M2000-02737-COA-R10-CV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: Jim T. Hamilton
This case involves an interstate battle between never-married parties over the custody of a six year old child. This court granted an interlocutory appeal so that we could determine whether the Wayne County Chancery Court has jurisdiction over the paternity and custody of this child and whether the temporary emergency custody order is valid. We hold that the Wayne County court has subject matter jurisdiction over paternity and custody matters, but that the temporary emergency custody order was invalid because the child was not present in this state and the facts alleged were insufficient to obtain such an order. We remand for a hearing on paternity and custody.

James E. Swiggett vs. Carl R. Ogle, Jr., and J. Michael Kerr
E2000-01473-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: G. Richard Johnson
In this action for legal malpractice, the Trial Court ruled a prior suit filed by plaintiff and dismissed on the merits was res judicata to this action. We affirm.

Terry Yates vs. City of Chattanooga, et al
E2000-02064-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Howell N. Peoples
Chattanooga Police Officer Terry Yates filed a petition for certiorari in the trial court, claiming that he was denied due process in connection with an adverse employment decision. Yates, who was demoted from the rank of sergeant in 1994, sought reinstatement to his former rank. An administrator initially reinstated him, but subsequently rescinded the reinstatement. Yates claimed that the rescission was a "demotion," and, consequently, demanded a hearing before the defendant City Council for the City of Chattanooga ("the City Council"). Following a hearing, the City Council found that the administrator did not have the authority to reinstate Yates to his former rank. This being the case, the City Council found that there had been no "demotion" by virtue of the subsequent rescinding of the reinstatement. The trial court agreed with the City Council and dismissed Yates' petition. He appeals. We affirm.

State of Tennessee v. Jeremy Taylor
E2000-01724-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge D. Kelly Thomas, Jr.

The defendant was indicted by a Blount County Grand Jury for casual exchange of a controlled substance, marijuana, and found guilty following a bench trial. Following a sentencing hearing, the trial court sentenced the defendant to eleven months and twenty-nine days in jail. As to the manner of service of the sentence, the first ninety days were ordered served in confinement with the option of serving the last thirty days in an inpatient drug abuse program. The balance of the sentence was ordered served on probation. In this appeal as of right, the defendant presents two issues for our review: (1) whether the evidence was sufficient to support his conviction; and (2) whether the manner of service of his sentence was appropriate. We affirm both the conviction and sentence.

James R. Britt v. State of Tennessee
E2000-02259-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Buddy D. Perry

The petitioner, James R. Britt, seeks correction of an alleged illegal sentence. He claims that he is serving an illegal and void sentence because he was sentenced as a Range III offender, even though he qualified for no more than Range I classification. Because we agree with the lower court that the petitioner's sentence is not illegal or void, we affirm the lower court's order dismissing the petition.

State of Tennessee v. Llewelyn D. Larmond
E2000-01910-CCA-R3-CD
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Judge Phyllis H. Miller

Pursuant to a negotiated plea agreement, the defendant pled guilty to two counts of selling 0.5 grams or more of cocaine, possession of marijuana, and the sale of counterfeit cocaine. He received an effective sentence of sixteen years. The manner of service of his sentences was left to the discretion of the trial court. Defendant now contends the trial court erred in denying his request for alternative sentencing. After a thorough review of the record, we affirm the judgment of the trial court.

Dept. of Children's Scvs. vs. M.A.D.
E2000-02501-COA-R3-JV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Thomas J. Wright
The State of Tennessee, Department of Children's Services ("Department") obtained temporary custody of the three minor children of M.A.D. ("Mother") after she was arrested and the children's father was already in jail. A Permanency Plan ("Plan") was developed which required Mother to take several affirmative steps in order to regain custody and provide an appropriate home for her children. When Mother failed to comply with the Plan, the Juvenile Court terminated her parental rights after concluding there was clear and convincing evidence that there had been substantial noncompliance by Mother with the Plan. The Juvenile Court also found clear and convincing evidence that the conditions which led to the children's removal still persisted and prevented the children's safe return to Mother, that there was little likelihood that these conditions would be remedied at an early date so that the children could be returned safely to Mother, and that continuing the parent/child relationship would greatly diminish the children's chances of early integration into a safe, stable and permanent home. The Juvenile Court also concluded there was clear and convincing evidence that termination of Mother's parental rights was in the best interests of the three children. Mother appeals the termination of her parental rights. We affirm.

State of Tennessee v. Wesley Lee Williams
E1999-02221-CCA-R3-PC
Authoring Judge: Judge J. Curwood Witt, Jr.
Trial Court Judge: Judge Rex Henry Ogle

Wesley Lee Williams appeals the denial of his claim for post-conviction relief. He claims that his guilty pleas were not knowingly, voluntarily and intelligently entered because he was mentally impaired and taking prescription medication at the time he entered the pleas. He further claims that the trial court committed error of constitutional dimension in failing to inquire about his mental condition and the effect of his medication on his mental state. We conclude, as did the lower court, that the petitioner has failed to carry his burden of proof. Accordingly, we affirm the lower court's denial of post-conviction relief.

Barbara Jean McCall v. Kevin Green
E1999-02827-COA-R3-CV
Authoring Judge: Presiding Judge Houston M. Goddard
Trial Court Judge: Judge Shirley B. Underwood

This is an action where Kevin Green seeks to change custody of his son, Zachary Green, from Zachary's mother, Barbara Jean McCall. We find an order entered contended by Ms. McCall to be an agreed order was not in fact an agreed order, nor a valid one. We further find that the Trial Judge should have recused herself. We accordingly vacate the purported agreed order and direct that the Trial Judge recuse herself and another Judge be appointed by the Administrative Office of the Courts.

Gloria Ann Johnson v. World Color Press, Inc.
W1999-01961-SC-WCM-CV
Authoring Judge: Henry D. Bell, Sp. J.
Trial Court Judge: J. Steven Stafford, Chancellor
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 defendant World Color Press, Inc. appeals the judgment of the Circuit Court of Dyer County which denied defendant's claim for set-off for short-term disability benefits paid by defendant under its disability plan. We find that the trial court erred in its application of Tenn. Code Ann. _ 5-6- 114 and reverse the trial court's judgment on that issue. We further find that plaintiff waived consideration on appeal of her claim that defendant failed to establish that the disability plan was "employer funded" as required by the statute. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Chancery Court Reversed and Remanded HENRY D. BELL, SP. J., in which JANICE M. HOLDER, J., and W. MICHAEL MALOAN, SP. J., joined. Jeffrey L. Lay and Gary H. Nichols, Dyersburg, Tennessee, for the appellant, WorldColor Press, Inc. Jay E. DeGroot, Jackson, Tennessee, and Tanda Rae Grisham, Memphis, Tennessee, for the appellee, Gloria Ann Johnson. MEMORANDUM OPINION The plaintiff was injured at work after the effective date of the 1996 amendment to the T.C.A. _ 5-6-114 under which defendant claims a right of set-off. 1 T.C.A. _ 5-6-114 provides as follows: (a) No contract or agreement, written or implied, or rule, regulation or other device, shall in any manner operate to relieve any employer in whole or in part of any obligation created by this chapter except as herein provided. (b) However, any employer may set off from temporary total, temporary partial, and permanent partial and permanent total disability benefits any payment made to an employee under an employer funded disability plan for the same injury, provided that the disability plan permits such an offset. Such an offset from a disability plan may not result in an employee receiving less than the employee would otherwise receive under the workers' compensation law. In the event that a collective bargaining agreement is in effect, this provision shall be subject to the agreement of both parties. The record on appeal consists of the technical record and a verbatim transcript of trial excerpts which includes only the testimony of Mrs. Christie Shannon, defendant's human resources manager. She testified as to the existence of defendant's short term disability program, the provisions of the plan and that payments totaling $5,826.82 were made to plaintiff following her injury. The witness was unable to produce at trial a copy of the short term disability plan. The other excerpts are the findings and conclusions of the trial judge stated from the bench. The court found that the injury was compensable and awarded temporary total disability in the amount of $6,82.54 and a lump sum based upon a finding of thirty percent (3%) permanent partial disability to the body as a whole. Before determining medical expense and discretionary costs issues the trial judge addressed counsel as follows: The issue then becomes one of the applicability of T.C.A. 5-6- 114(b). That statute deals with set off for payments by disability plans. . . . . The question is today, does the defendant receive benefits or receive offsets for any short-term disability that it may have paid to the plaintiff. The attorneys for both sides have done a good job here today of explaining this case and explaining the applicability of this Statute. It is the defendant's position that this Statute applies and that they should receive the credit for the $5,826.82 that has been paid by the defendant to the plaintiff as the result of the short-term disability. 2

L.D. Mangrum v. Spring Industries and Zurich
M2000-01262-WC-R3-CV
Authoring Judge: Howell N. Peoples, Special Judge
Trial Court Judge: Russell Heldman, Judge
The employer appeals and contends (1) the trial court abused its discretion in refusing to admit and consider the deposition testimony of a physician and (2) erred in awarding the employee sixty-five percent disability to each leg. We sustain the contentions of the employer and modify the award to sixty-five percent to both legs.

Linda Ek v. Fluor Daniel, Inc.
W2000-00045-SC-WCM-CV
Authoring Judge: Joe C. Loser, Jr. Sp. J.
Trial Court Judge: Joe C. Morris, Chancellor
In this appeal, the employee or claimant, Linda Ek, contends (1) the evidence preponderates against the trial court's findings that the contract of hire was made in Mississippi and that she willingly and knowingly elected to receive benefits under Mississippi law; and (2) the conditional award of permanent partial disability benefits is inadequate. As discussed below, the panel has concluded that the contract of hire was made in Tennessee, that the employee did not voluntarily, deliberately and with full knowledge of her options, accept benefits under Mississippi law, and that the conditional award of permanent partial disability benefits should be affirmed.

State of Tennessee v. David Pryor Gilliard
M1999-00771-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge John H. Gasaway, III

A Montgomery County jury convicted Defendant, David Pryor Gilliard, of theft of property under $500 in value, and burglary of an automobile. As a result of these convictions, the trial court found the Defendant was in violation of a previously imposed four-year Community Corrections sentence. Following a sentencing hearing, the trial court sentenced Defendant as a Range II multiple offender to four (4) years for the burglary and eleven (11) months and twenty-nine (29) days for the theft with the sentences to run concurrently. The trial court also ordered that the theft and burglary sentences run consecutively to Defendant's Community Corrections violation, for an effective sentence of eight years. Defendant appeals as of right and challenges the length and manner of service of his sentence. After a thorough review of the record, we affirm the judgment of the trial court.

Dorothy G. Mackie, Widow of James V. Mackie v. Young Sales Corporation
M1998-00590-SC-WCM-CV
Authoring Judge: Per Curiam

Young Sales Corporation, through counsel, has filed a petition to rehear this Court’s opinion released on March 1, 2001. We have reviewed the arguments raised in the petition and conclude that they are without merit. Accordingly, it is ORDERED that the petition to rehear is denied.

State of Tennessee v. Thomas Hicks
M2000-00404-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Seth W. Norman

The Defendant was convicted by a Davidson County jury of aggravated robbery and sentenced by the trial court to twenty-two years in the Tennessee Department of Correction. On appeal, the Defendant argues that the trial court erred in failing to suppress the Defendant's confession. The confession had been videotaped by police detectives, but the video tape was accidentally erased prior to trial. Finding no error by the trial court, we affirm the Defendant's conviction.