The Rogers Group vs. Anderson County E2002-00409-COA-R9-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Telford E. Forgerty, Jr.
After case was tried, the Trial Judge recused and another Judge was designated who granted a new trial on all issues. On appeal, we affirm.
Anderson
Court of Appeals
Glenda Cooper vs. State E2002-02415-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
This is a wrongful death action filed against the State of Tennessee with the Tennessee Claims Commission. The State filed a motion for judgment on the pleadings, asserting that it was not liable for the actions of the Bradley County Sheriff, whose negligence is alleged to be the proximate cause of the death of the plaintiff's intestate. The Claims Commission, relying upon the case of Spurlock v. Sumner County, 42 S.W.3d 75 (Tenn. 2001), held that the sheriff was not a state employee but rather a county officer. It dismissed the claim against the State. We affirm.
The Defendant, Dennis Cedric Woodard, Jr., was convicted by a jury of first degree premeditated murder and sentenced to life imprisonment with the possibility of parole. In this appeal as of right, the Defendant argues that the evidence presented at trial is not sufficient to sustain his conviction. We affirm the judgment of the trial court.
Bedford
Court of Criminal Appeals
Brenda Martin, Executor Est. of Dewey Moore v. Jean Moore M2001-03144-COA-R3-CV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: Vernon Neal
A man who had been diagnosed with dementia executed a power of attorney in favor of his wife. The wife used the power to withdraw all the money from her husband's separately owned bank account, and sent most of it to her brother for investment overseas. She also completed the sale of real property her husband had owned in Kentucky, and placed the proceeds in a marital account. After his death, the man's daughter from a previous marriage brought suit for breach of fiduciary duty, asking for the return of the assets to his estate. The trial court ordered the return of the money taken from the bank account, but ruled that the wife was entitled to keep the proceeds from the sale of the real property. The court also ordered the wife to pay some of the daughter's attorney fees. We affirm the judgment of the trial court.
Clay
Court of Appeals
Western Express v. Benchmark Electronics M2001-03151-COA-R3-CV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: Carol L. Mccoy
Western Express, Inc. sued Benchmark Electronics Huntsville, Inc. for detention charges after Western's trailers were unreasonably detained at Benchmark's plant in Pulaski. The Chancery Court of Davidson County granted summary judgment to Benchmark, and Western asserts on appeal that the court erred in finding that the undisputed facts show that Western cannot prevail on its claims. We reverse the judgment of the trial court.
Davidson
Court of Appeals
Jet Printing v. Deep South Wholesale Paper M2001-02582-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Carol L. Mccoy
This is a breach of contract case. A bag manufacturer ordered printed polyethylene film from a printing company, to be made into bags to sell to chicken packaging companies. The film was treated on both sides. Consequently, the bag manufacturer was unable to properly seal the bags. Later shipments of film that were not treated on both sides sealed properly. The bag manufacturer refused to pay for the initial shipment of film that would not seal, so the seller printing company sued for breach of contract. The trial court found for the bag manufacturer, holding that the seller breached both an implied term of the contract and an implied warranty of fitness for a particular purpose. On appeal, the seller printing company argues that the trial court erred in finding that the film did not conform to the contract and that the seller breached the implied warranty of fitness for a particular purpose, and that the trial court erred in excluding the testimony of the seller's proffered expert. We affirm, finding that the trial court did not err in finding that the seller breached an implied warranty for a particular purpose, nor in excluding the testimony of the seller's expert witness.
Davidson
Court of Appeals
Violet Guarino v. Joseph Corrozzo M2001-02789-COA-R3-CV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: Royce Taylor
The appellant was ordered in a divorce decree to pay his wife a portion of his pension. He attempted to discharge these payments in a bankruptcy proceeding. The Chancery Court of Rutherford County held that the payments were non-dischargeable because they constituted "support, maintenance or alimony" payments which are not dischargeable under the bankruptcy code. On appeal, appellant argues that wife violated the automatic stay injunction by filing in a state court and that she failed to properly object to the discharge. Appellant also argues that the trial court did not have subject matter jurisdiction. We hold that the payments were in the nature of support and, therefore, not a dischargeable debt. This result means that the issues raised by the appellant are moot. We affirm the trial court's decision.
Michael Higgins vs. Sheriff A.C.Gilles Jr. W2001-02829-COA-R3-CV
Authoring Judge: Judge W. Frank Crawford
Trial Court Judge: D. J. Alissandratos
Petitioner, off-duty deputy sheriff, was arrested during bust of known drug house for possession of drug paraphernalia. Upon deputy sheriff's arrest, Internal Affairs twice ordered petitioner to submit to drug test. At time of requests, petitioner did not have assistance of counsel; however, two Sheriff's Association representatives were present and available for consultation. Petitioner refused both orders, but on third day following arrest, after consulting with an attorney, voluntarily requested drug test. Department refused request, and subsequently charged petitioner with insubordination, possession and use of illegal drugs, and conduct unbecoming an officer. After hearing before the Deputy Chief, petitioner was terminated. Civil Service Merit Board upheld termination, and petitioner filed common law writ of certiorari with chancery court. Chancery court affirmed the Civil Service Merit Board. We affirm.
Shelby
Court of Appeals
Christopher Ryan vs. James Surprise W2001-02853-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: George H. Brown
This case involves discovery sanctions. The plaintiff sued the defendants, a lawyer and his law firm, for legal malpractice. The plaintiff requested certain documents from the defendants at least three times, which were not produced. The trial court ordered production of the documents at a deposition. The documents were not produced at the deposition. Twenty-eight days after the deposition, on the eve of a hearing on the defendants' alleged discovery abuses, the documents were produced. In response to the plaintiff's request for sanctions, the trial court ordered that the defendants pay the plaintiff's attorney a monetary sanction. The defendants appeal, arguing that the imposition of the sanction was an abuse of discretion, because there was no evidence indicating the amount of attorney time spent on the alleged discovery abuse and, therefore, no evidentiary basis for the amount of the sanction. We vacate the order of the trial court and remand for further proceedings, because the record does not support the trial court's award.
Shelby
Court of Appeals
Raymond Anthony vs. Christine Rodgers W2002-01240-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Rita L. Stotts
This case began as a petition for dependency and neglect but evolved into a custody dispute between the mother and father of a child born out of wedlock. Originally, the mother appealed to the Circuit Court of Shelby County which stayed the order of the Juvenile Court granting custody to the father. The father appealed to this Court pursuant to Rule 10 of the Rules of Appellate Procedure and we remanded this case to the Circuit Court for entry of an order transferring the appeal to this Court as the Circuit Court lacked subject matter jurisdiction. For the following reasons, we affirm the decision of the Juvenile Court.
Shelby
Court of Appeals
James Jordan Jr. vs. Kelly Jordan W2002-00854-COA-R3-CV
Authoring Judge: Judge W. Frank Crawford
Trial Court Judge: Rita L. Stotts
This case involves the enrollment of a foreign divorce decree, enforcement of the child support obligation therein, and the modification of the visitation privileges set out in the decree. The trial court enrolled the foreign decree, entered judgment for arrearages and child support, and amended the enrolled judgment as to the visitation privileges for Father. Father appeals. We affirm.
Shelby
Court of Appeals
Avis Estes, Etc. v. Edgar Meek M2001-02695-WC-R3-CV
Authoring Judge: Joe C. Loser, Jr., Sp. J.
Trial Court Judge: Leonard Martin, 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. In this appeal, the employer questions the trial court's finding that the death of Walter B. Estes was the caused by a work related accidental injury. As discussed below, the panel has concluded the judgment should be affirmed. Tenn. Code Ann. _ 5-6-225(e) (21 Supp.) Appeal as of Right; Judgment of the Chancery Court Affirmed JOE C. LOSER, JR., SP. J., in which ADOLPHO A. BIRCH, JR., J., and WILLIAM H. INMAN, SR. J., joined. Blakely D. Matthews and Jay N. Chamness, Cornelius & Collins, Nashville, Tennessee, for the appellant, Edgar Meek Jerred A. Creasy, Vandivort & Creasy, Charlotte, Tennessee, for the appellee, Avis Estes, surviving spouse of Walter B. Estes MEMORANDUM OPINION The claimant, Avis Estes, initiated this civil action to recover workers' compensation benefits for the allegedly work related death of the employee, her late husband, Walter Estes. By its answer, the employer, Edgar Meek, admitted the employee suffered a compensable injuryby accident on July 1, 1998, but denied that his death on September 29, 1998 was causally related to that accident. After a trial on the merits, the trial court found the accident to be the cause of Mr. Estes's death and awarded benefits to Mrs. Estes. The employer has appealed. For injuries occurring on or after July 1, 1985, 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) (21 Supp.). The reviewing court is required to conduct an independent examination of the record to determine where the preponderance of the evidence lies.
Dickson
Workers Compensation Panel
Michael Story v. The Holland Group of Tennessee d/b/a M2001-03078-WC-R3-CV
Authoring Judge: Joe C. Loser, Jr., Sp. J.
Trial Court Judge: Allen W. Wallace, Judge
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. In this appeal, the employer and its insurer question the trial court's finding relative to the extent of the employee's permanent disability, as being excessive. As discussed below, the panel has concluded the judgment should be affirmed. Tenn. Code Ann. _ 5-6-225(e) (21 Supp.) Appeal as of Right; Judgment of the Circuit Court Affirmed JOE C. LOSER, JR., SP. J., in which ADOLPHO A. BIRCH, JR., J., and WILLIAM H. INMAN, SR. J., joined. Kenneth M. Switzer, Ruth, Howard, Tate & Sowell, Nashville, Tennessee, for the appellants, The Holland Group of Tennessee d/b/a The Holland Group and CGU Insurance Group Charles L. Hicks, Camden, Tennessee, for the appellee, Michael Story MEMORANDUM OPINION The employee or claimant, Mr. Story, initiated this civil action to recover workers' compensation benefits for a work related injury. The employer, The Holland Group, denied liability. After a trial on October 26, 21, the trial court awarded, among other things, permanent partial disability benefits based on 5 percent to the body as a whole. The employer and its insurer have appealed. Appellate review is de novo upon the record of the trial court, accompanied bya presumption of correctness of the findings of fact, unless the preponderance of the evidence is otherwise. Tenn. Code Ann. _ 5-6-225(e)(2) (21 Supp.). The reviewing court is required to conduct an independent examination of the record to determine where the preponderance of the evidence lies.
Humphreys
Workers Compensation Panel
State of Tennessee v. Art Mayse M2001-03172-CCA-R3-CD
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge E. Shayne Sexton
The Defendant, Art Mayse, was convicted by a jury of eleven counts of rape of a child, each a class A felony, and seven counts of aggravated sexual battery, each a class B felony. After a sentencing hearing, he was sentenced as a Range I offender to an effective sentence of fifty years to be served in the Department of Correction. In this appeal as of right, the Defendant challenges: (1) the adequacy of the bill of particulars, (2) the constitutionality of the delay between the commission of the offenses and the disclosure to authorities, (3) the trial court's denial of his request for a change of venue and motion to excuse a juror for cause, and (4) the sufficiency of the evidence. Because the evidence is insufficient to support two of the aggravated sexual battery convictions, those convictions are reversed and dismissed. The remaining convictions are reversed and the case is remanded for a retrial on those charges because the trial court failed to require the State to elect the offenses on which it relied to support the convictions.
The Defendant, Lester E. Elliott, was convicted by a jury of driving in violation of the Motor Vehicle Habitual Offenders Act. He was sentenced to two years in the Department of Correction for this offense. The Defendant now appeals as of right, arguing that the evidence is not sufficient to sustain his conviction. We affirm the judgment of the trial court.
The Defendant, Maurice Lamont Davidson, was convicted by a jury of one count of second degree murder, one count of voluntary manslaughter, and one count of attempted voluntary manslaughter. The trial court subsequently sentenced the Defendant to twenty-two years for the second degree murder, three years for the voluntary manslaughter, and two years for the attempted voluntary manslaughter, with the first two sentences to be served concurrently and the third sentence to be served consecutively, all to be served in the Department of Correction. In this direct appeal, the Defendant contends that the trial court erred in excluding certain expert testimony; that the evidence is not sufficient to support his convictions; and that the sentences are excessive. We affirm the Defendant's convictions, reduce his sentence for the second degree murder to twenty years, and order that his sentence for attempted voluntary manslaughter be served concurrently.
The Appellant, Robert Wayne Herron, was convicted by a Putnam County jury of felony possession of cocaine with intent to deliver, simple possession of cocaine, and possession of drug paraphernalia. In this appeal, Herron contends that (1) the trial court erred in admitting evidence of his prior drug activity in violation of Tennessee Rule of Evidence 404(b) and (2) the evidence is legally insufficient to support these convictions. After review, we find these contentions are without merit. Although not raised as error, we find Herron’s multiple convictions for simple possession and felony possession, stemming from a single cocaine possession, violate principles of double jeopardy. The misdemeanor cocaine conviction is, therefore, merged with the felony cocaine conviction. We remand for entry of judgments of conviction consistent with this holding. Herron’s convictions for felony possession with intent to deliver and misdemeanor possession of drug paraphernalia are affirmed.
Putnam
Court of Criminal Appeals
In matter of: S.Y., J.Y., and D.Y. W2002-00593-COA-R3-JV
Authoring Judge: Judge W. Frank Crawford
Trial Court Judge: George E. Blancett
Department of Children's Services filed petition to terminate parental rights of mother of dependent and neglected minor children. Department's termination petition was based on allegations of abandonment, mother's failure to substantially comply with a permanency plan, and the removal of the children for at least six months with little likelihood that the condition causing removal will be remedied. Juvenile Court granted petition terminating mother's parental rights. Mother appeals, asserting that juvenile court violated her due process rights by failing to appoint an attorney for the dependent and neglect proceeding, and erred in concluding that clear and convincing evidence exists to support findings that warrant termination of parental rights. We affirm.
Shelby
Court of Appeals
Promus Hotels vs. Martin, Cole, Dando, Robertson W2002-01028-COA-R3-CV
Authoring Judge: Judge W. Frank Crawford
Trial Court Judge: Walter L. Evans
Shelby County -This is an appeal from an Order denying Appellant's Motion to Compel Arbitration. Appellant filed a third-party claim against its subcontractor, Appellee, for indemnity. The Subcontract between the parties contained an agreement to arbitrate. Appellant contends that the agreement binds Appellee to arbitrate the matter. Appellee contends that it is not bound to arbitrate due to an exception in the Subcontract. We affirm and remand.
Shelby
Court of Appeals
Trumbo Inc. vs. Witco Corp. W2002-01186-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: D'Army Bailey
This case involves the loss of evidence. A metal fabrication company modified a fat melting tank for another company. Later, an employee of the melting tank company was severely injured by hot melted fat while working with the modified tank. Following the accident, as part of an investigation, the employer removed the two temperature gauges attached to the tank. The employer paid workers' compensation benefits to the employee. The employee then sued the fabrication company that modified the tank. The employer intervened to assert its statutory lien under the workers' compensation laws, so that it could recover any monies paid to the employee by the fabrication company. Five years after the accident, the fabrication company sought production of the temperature gauges from the employer, as part of its defense in the lawsuit filed against it by the employee. The employer was unable to locate the gauges. The fabrication company settled the lawsuit filed by the injured employee, and filed a claim against the employer for spoliation of evidence and negligence. The fabrication company argued that it was forced to settle the underlying lawsuit with the employee, in part because of the missing gauges. The trial court granted a motion for summary judgment in favor of the employer, finding that the employer did not have a duty to preserve the evidence and that the fabrication company had not established causation. The fabrication company appeals. We affirm, finding that regardless of whether the employer had a duty to preserve the temperature gauges, the fabrication company had not proffered evidence that the gauge would have materially assisted it in defending the lawsuit filed by the employee, and thus was unable to establish causation.
Shelby
Court of Appeals
A.I.J.J. Inc. vs. Norman Weizer W2002-00975-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Robert L. Childers
This dispute regards a contractual obligation of an employee to repay recruitment costs incurred by his employer should he leave his position within a two year period. The trial court applied Florida law to the dispute and awarded judgment to the employer. We hold the contract is governed by New York law. We further find the provision was not applicable where the employee was terminated and reverse the judgment.
The appellant, Mark A. Griffin, was convicted by a jury in the Anderson County Criminal Court of first degree murder committed in the perpetration of an aggravated robbery and was sentenced to life imprisonment without the possibility of parole. On appeal, the appellant raises several evidentiary questions, contests the jury charge, and challenges the sufficiency of the evidence supporting his conviction. Upon review of the record and the parties' briefs, we affirm the judgment of the trial court.
The petitioner, Allen Dale Cutshaw, appeals the trial court's denial of his petition for post-conviction relief. In this appeal, the petitioner asserts that he was denied the effective assistance of counsel. The judgment of the trial court is affirmed.
Greene
Court of Criminal Appeals
State of Tennessee v. Clyde T. Smith M2002-00553-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge J. Randall Wyatt, Jr.
While serving a sentence in a community corrections program, the defendant was indicted and arrested on two counts of selling and delivering cocaine. His community corrections status was revoked upon proof of the indictment and arrest alone. The defendant claims that proof of an indictment and arrest, standing alone, is insufficient to support a revocation of a community corrections sentence. We agree and reverse the judgment from the trial court.
