Opinions

Anthony J. Robinson v. State of Tennessee
W2000-02248-CCA-R3-CO
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Judge W. Otis Higgs, Jr.

Petitioner was originally convicted by a Shelby County jury of aggravated rape, a Class A felony, and sentenced to thirty-seven years as a Range II offender. Petitioner now appeals the denial of his petition for writ of habeas corpus in which he alleged his indictment was void. Upon our review of the record, we affirm the judgment of the trial court.

State of Tennessee v. Mark A. Stacy
E2000-02906-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Carroll L. Ross

The defendant was indicted by a Polk County Grand Jury for first degree murder. Following a two-day trial, he was found guilty of second degree murder, a Class A felony. The trial court sentenced the defendant to twenty-three years as a Range I, violent offender in the Tennessee Department of Correction. In this appeal as of right, the defendant does not challenge his conviction but contends only that his sentence is excessive. Having reviewed the entire record, including the transcript of the sentencing hearing, we conclude that the defendant's issues concerning the length of his sentence are without merit. We affirm the judgment of the trial court.

David Patrick Pearson v. State of Tennessee
E2000-00438-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Richard R. Baumgartner

The petitioner appeals from the Knox County Criminal Court's dismissal of his petition for post-conviction relief, by which he sought to set aside his earlier guilty pleas. On appeal, the petitioner presses his claim that because he received ineffective assistance of counsel, his guilty pleas were not voluntary and knowing. Finding that the services of the petitioner's trial counsel were below the range of competence demanded of attorneys in criminal cases and that the petitioner was thereby prejudiced, we reverse the judgment of the post-conviction court, vacate the petitioner's convictions, and set aside the petitioner's guilty pleas without prejudice to further proceedings on the underlying charges.

State of Tennessee, ex rel., Woody M. Hartley v. Jennifer L. Robinson
M2000-01625-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Judge Muriel Robinson

After divorce, Husband was ordered to pay child support to Wife for care of his minor children. Husband was employed as a commercial truck driver by Company. Thereafter, Husband was diagnosed with seizure disorder that required medication to treat. As a result, Husband lost his commercial trucking license as mandated by Federal Regulations. Upon losing his job as a commercial truck driver, Husband accepted a warehouse position with Company for considerably less money. He petitioned the court for a reduction of child support commensurate with his lower salary. The trial court found that he was underemployed and denied the reduction. Husband appealed. Although he failed to submit a transcript or statement of the evidence in the record, the trial court's order contains stipulated facts. We reverse and remand for entry of order reducing child support.

Krishnalal Patel, et al., v. Dileep Patel
M2000-00583-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Chancellor Irvin H. Kilcrease, Jr.

The SREE General Partnership was formed for the purpose of owning and managing motel property in Nashville, Tennessee. During the ownership period, the property deteriorated. The partners sued a co-partner for breach of fiduciary duty, claiming that his negligent management of the property was what caused the deterioration and resulting economic loss. The trial court ruled for the defendant. We affirm.

In re: Estate of Pauline Maddox
M1998-00925-COA-R3-CV
Authoring Judge: Judge William C. Koch, Jr.
Trial Court Judge: Chancellor Tom E. Gray

This appeal involves the testamentary intent of an 89-year-old widow who died leaving a sizeable estate. After one of the decedent's grandsons, acting as her executor, submitted for probate a February 1991 will and a June 1995 codicil, the decedent's surviving daughter filed a will contest proceeding in the Chancery Court for Sumner County, alleging that the will had been procured by the executor's undue influence and that the distribution of the estate should be governed by a 1989 holographic instrument. Following a bench trial, the trial court upheld the validity of the 1991 will and the 1995 codicil. On this appeal, the decedent's daughter asserts that the trial court erred by determining that the 1991 will and the 1995 codicil expressed the decedent's testamentary wishes rather than the 1989 document. We have determined that the evidence supports the trial court's conclusions and, therefore, affirm the judgment.

The John Lee Co., Inc. v. Lamar Haynes, et al.
M2000-02407-COA-R3-CV
Authoring Judge: Senior Judge William H. Inman
Trial Court Judge: Chancellor Irvin H. Kilcrease, Jr.

The plaintiff, a manufacturers' representative, filed this action for a declaratory judgment that it is not indebted to the defendant for commissions on sales of tee shirts manufactured by Tee Jays Manufacturing Company and sold to Planet Hollywood, in light of the fact that the defendant's sole participation was to arrange a meeting between buyer and seller. The Chancellor found the plaintiff was liable for the commission under a contract theory. We affirm.

Tommy Burgess, et al., v. Bill Fuller, D/B/A Bill Fuller Landscaping
M2000-02094-COA-R3-CV
Authoring Judge: Presiding Judge Ben H. Cantrell
Trial Court Judge: Judge Robert L. Holloway

In this dispute over a landscaping contract, the Circuit Court of Maury County held that the contractor breached the agreement. The defendant contends that the court rewrote the agreement. We disagree and affirm the judgment of the trial court.

Jerry T. Beech Concrete Contractor, Inc. v. Larry Powell Builders, Inc., et al
M2000-01704-COA-R3-CV
Authoring Judge: Senior Judge William H. Inman
Trial Court Judge: Chancellor Ellen Hobbs Lyle

This is an action by a contractor to receive the balance due under a contract for the construction of two buildings. The owner counterclaimed for damages alleging lack of good workmanship. A principal issue concerned attorney fees, and whether a document purporting to be a contract was, in fact, a contract. We hold that the document proffered by the plaintiff was accepted as a contract by the defendant, and that the attorney fee provision is enforceable.

State of Tennessee v. Michael A. Miller
E2000-00930-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Lillie Ann Sells

The defendant was convicted in the Cumberland County Criminal Court of aggravated sexual battery of a seven-year-old boy. Following the trial court's denial of his motion for a new trial, the defendant filed an appeal as of right to this court, raising three issues: (1) whether the evidence was sufficient for a rational trier of fact to find him guilty beyond a reasonable doubt of aggravated sexual battery; (2) whether the trial court abused its discretion in denying his motion for a new trial, based upon newly discovered evidence; and (3) whether the trial court erred in failing to instruct the jury on lesser-included offenses. Based upon our review, we affirm the judgment of the trial court.

State of Tennessee v. Cynthia Taylor Mann
M1999-01390-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge John H. Gasaway, III

The Defendant pleaded guilty to theft of property valued over sixty-thousand dollars, a Class B felony. The trial court sentenced the Defendant as a Range I, standard offender to the minimum eight-year sentence, to be served in the Tennessee Department of Correction. The Defendant now appeals, arguing that the trial court erred in denying her alternative sentencing. We affirm the judgment of the trial court.

Billy Saleem El-Amin, aka Billy Noble Forrest v. Jack Morgan, Warden and State of Tennessee
M1999-02172-CCA-R3-PC
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Thomas W. Brothers

The petitioner filed a petition for writ of habeas corpus, contending that the two sentences for which he was incarcerated were being served concurrently and that both had expired, resulting in his being held illegally by the Tennessee Department of Correction for the second sentence. However, the Court of Appeals, presented previously with this same issue by the petitioner, determined that the sentences were to be served consecutively. Thus, the second sentence has not expired. We reverse the order of the post-conviction court that the two sentences were served concurrently and that the second sentence has expired. The petition for writ of habeas corpus is dismissed.

State of Tennessee v . Victor D. Neuenschwander
M2000-01334-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Timothy L. Easter

The Defendant pleaded guilty to sexual battery by an authority figure, a Class C felony. The Defendant was sentenced as an especially mitigated offender to two years and seven months in the Tennessee Department of Correction. The Defendant now appeals, arguing that the trial court erred in denying him alternative sentencing. Finding no error, we affirm the judgment of the trial court.

State of Tennessee v. Sean W. Conway
M2000-01263-CCA-R3-CD
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Judge Timothy L. Easter

The defendant was indicted for driving under the influence (DUI), driving while his alcohol concentration was .10% or more (DUI per se), and DUI, second offense. After a jury trial on DUI and DUI per se, the jury acquitted the defendant of DUI and was unable to reach a verdict on DUI per se. A second trial was held, and the jury convicted the defendant of DUI per se. The trial judge then found this conviction to be a second offense. In this appeal, the defendant alleges (1) the defendant's retrial for DUI per se violated the principles of double jeopardy; (2) the trial court erroneously admitted the results of the breath test and related evidence; (3) the trial court erroneously admitted testimony of the arresting officer concerning his encounters with other motorists charged with DUI; (4) the trial court improperly considered a prior conviction for enhancement of the defendant's sentence; and (5) the trial judge erroneously failed to recuse himself. Upon review of the record, we reduce the defendant's conviction to DUI, first offense, remand for resentencing, and affirm the trial court in all other respects.

State of Tennessee v. David Walter Troxell
M2000-01100-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Robert E. Burch

Defendant, charged with possession with intent to sell and/or deliver a controlled substance and possession of drug paraphernalia, filed a motion to suppress over 300 grams of cocaine, paraphernalia, and U.S. currency discovered during a search of his vehicle. The trial court, Dickson County, granted Defendant's motion to suppress the evidence on the ground that the search impermissibly exceeded the scope of Defendant's consent. The State appealed. After a review of the record, we reverse the judgment of the trial court.

State of Tennessee v. Jacob Lee Davis
M1999-02496-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge W. Charles Lee

Following a jury trial, Defendant, Jacob Lee Davis, was convicted of premeditated first degree murder, reckless endangerment, and carrying a weapon on school property. The trial court sentenced him to life imprisonment for the first degree murder conviction and one year each for the reckless endangerment and carrying a weapon on school property convictions. The trial court ordered that the latter sentences be served concurrent to the sentence for life imprisonment. On appeal, the Defendant challenges the sufficiency of the evidence to sustain each of the convictions and argues that the trial court erred in failing to strike six potential jurors for cause. After a review of the record, we affirm the judgment of the trial court.

State of Tennessee v. Dennis R. Jacks
E2000-00643-CCA-R3-CD
Authoring Judge: Judge Joseph M. Tipton
Trial Court Judge: Judge James B. Scott, Jr.

The defendant appeals from the revocation of his probation, contesting the trial court's jurisdiction. We affirm the judgment of the trial court.

Danny Bell v. Emerson Electric Company
W1999-00988-WC-R3-CV
Authoring Judge: John K. Byers, Sr. J.
Trial Court Judge: George R. Ellis, Chancellor
The trial court found the plaintiff sustained a seven and one-half percent permanent partial disability to the body as a whole as a result of an on-the-job injury to his left shoulder. The defendant says the evidence does not support the finding. We affirm the judgment of the trial court.

Donald L. Hughes v. Memphis Light, Gas & Water, et al.
W2000-01056-WC-R3-CV
Authoring Judge: Joe C. Loser, Jr., Sp. J.
Trial Court Judge: Floyd Peete, Jr., Chancellor
The employer insists (1) the trial court erred in finding a causal connection between the injury and the employment and (2) the trial court violated Tenn. R. Civ. P. 52.2 by filing findings of fact and conclusions of law after entry of final judgment. The Second Injury Fund insists the award of permanent partial disability benefits based on 85 percent to the body as a whole is excessive. The employee insists that the Second Injury Fund lacks standing in this tribunal because it did not file a notice of appeal, that the award is inadequate and that the appeal is frivolous. As discussed below, the panel has concluded the judgment should be affirmed.

Jhy D. Johnson v. Lojac Materials, Inc.
M2000-01811-WC-R3-CV
Authoring Judge: Joe C. Loser, Jr., Sp. J.
Trial Court Judge: C. K. Smith, Chancellor
This workers' compensation appeal has been referred to theSpecial 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. In this appeal, the employer insists the award of permanent partial disability benefits based on 5 percent to the left hand is excessive. The employee contends the award is inadequate. As discussed below, the panel has concluded the judgment should be affirmed. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Chancery Court Affirmed. JOE C. LOSER, JR., SP. J., in which FRANK F. DROWOTA, III, J., and JOHN K. BYERS, SR. J., joined. James H. Tucker, Jr., Manier & Herod, Nashville, Tennessee, for the appellant, Lojac Materials, Inc. William E. Farmer, Lebanon, Tennessee, for the appellee, Jhy D. Johnson. MEMORANDUM OPINION The employee is 26 years old and a high school graduate with some experience as an unskilled laborer. While at work on June 1, 1999, the employee or claimant, Johnson, caught his hand in a machine, fracturing the third and fourth metacarpals. He underwent surgery and was released to return to work without any permanent restrictions on July 27, 1999. He did not return to Lojac, but did return to work. The surgeon assessed his permanent impairment at 2 percent to the hand. An independent medical examiner assessed his permanent impairment at 3 percent to the hand. The injured worker says he cannot do some things he did before the injury. Upon the above summarized evidence, the trial judge awarded permanent partial disability benefits based on 5 percent to the hand. Appellate review is de novo upon the record of the trial court, accompanied by a presumption of correctness, unless the preponderance of the evidence is otherwise. Tenn. Code Ann. _ 5-6-225(e)(2). The panel is not bound by the trial court's findings but conducts an independent examination of the evidence to determine where the preponderance of the evidence lies.

Muriel C. Warren v. Henry I. Siegel Co., Inc.,
W2000-01387-WC-R3-CV
Authoring Judge: L. Terry Lafferty, Senior Judge
Trial Court Judge: Ron E. Harmon, Chancellor
The employer has appealed two issues from the trial court: (1) Whether the ten percent (1%) of the anatomical rating provided by Plaintiff's evaluating physician should have been assigned to Plaintiff's thumbs rather than to the arms; and (2) Whether the preponderance of the evidence supports the trial court's award of ninety percent (9%) permanent partial disability to the right arm and fifty percent (5%) permanent partial disability to the left arm. From our review of the record, we affirm the trial court's judgment.

Viki Parker v. WaUSAu Insurance Companies.
W2000-01517-WC-R3-CV
Authoring Judge: L. Terry Lafferty, Senior Judge
Trial Court Judge: George R. Ellis, Judge
After a detailed analysis of the evidence in the trial record, the trial court found the plaintiff sustained a 45 percent permanent partial disability to the right and left arms. However, the trial court denied the request for a lump sum. The defendant, Wausau Insurance Companies, appeals and presents one issue for appellate review: Whether the trial court's award of 45 percent permanent partial disability to each of the plaintiff's arms is excessive and not supported by a preponderance of the evidence? From our review of the entire record, the judgment of the trial court is affirmed for the reasons set forth below.

State of Tennessee v. Kai ("Guy") Nielsen and Betty Nielsen
E1998-00525-SC-R11-CD
Authoring Judge: Justice E. Riley Anderson
Trial Court Judge: Judge Arden L. Hill

We granted this appeal to determine whether a superseding indictment issued after the statute of limitations has elapsed must allege that the prosecution was timely commenced within the statutory period. After the trial court refused to dismiss the indictment, the defendants were tried and convicted of theft of property over $10,000. The Court of Criminal Appeals affirmed the convictions. After reviewing the record and applicable authority, we conclude that the superseding indictment, which was issued after the statute of limitations had elapsed, did not have to allege facts showing that the prosecution was timely commenced with a prior presentment.

Don Stonecipher v. Estate of M.E. Gray, Jr., et al
M1998-00980-COA-R3-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: Judge Robert L. Jones

This is an appeal from a chancery court jury trial on a dispute arising from a contract to buy a wrecker and salvage yard business for 1.1 million dollars. The purchaser alleged that the seller fraudulently induced him to contract to buy the business because after the parties reached an agreement on the purchase, the seller took items contemplated to be included in the contract without the buyer's knowledge. On the other hand, the seller's estate asserted a breach of contract claim because the note's balloon payment was overdue. After a trial, the jury decided that the seller had concealed or withheld items that the parties contemplated to be part of the contract, that the seller made misrepresentations as to what was to be included in the contract, he knew the misrepresentations were false at the time made, and he intended the buyer to rely on the misrepresentations. The jury decided that, had the buyer known the items were missing, he would not have declined to enter into the purchase at all but, instead, would have negotiated a lower price. Therefore, the court entered a verdict dismissing the buyer's complaint for rescission, awarded him a set-off and entered judgment against him for the balance of the note plus interest minus the set-off. Costs were apportioned between the parties and each party was ordered to pay its own attorney's fees. Both parties appeal. For the reasons below, we affirm the judgment of the trial court in part, vacate in part, and remand.

State of Tennessee v. Edward Lorenzo Samuels
M1999-01821-SC-R11-CD
Authoring Judge: Chief Justice E. Riley Anderson
Trial Court Judge: Judge Cheryl A. Blackburn

After revoking the defendant's community corrections sentence, the trial court increased the length of the defendant's sentence from six to eight years and ordered that the sentence be served consecutively to a sentence in an unrelated case. Although the Court of Criminal Appeals affirmed the trial court's judgment, we granted the defendant's application for permission to appeal and remanded the case to the Court of Criminal Appeals for consideration of our decision in State v. Taylor, 992 S.W.2d 941 (Tenn. 1999). The Court of Criminal Appeals again affirmed the trial court's judgment. After considering the record, we conclude that upon revoking the community corrections sentence, the trial court held a proper sentencing hearing and did not err either in increasing the length of the defendant's sentence or in ordering that the sentence be served consecutively. We therefore affirm the judgment of the Court of Criminal Appeals.