Opinions

Dr. Nord's Mouth As Was Successfully Done Bycounsel In Kerr v. Magic Chef, 793 S.W.2D 927, 928-
W1999-00743-SC-WCM-CV
Authoring Judge: Henry D. Bell, Special Judge
Trial Court Judge: Hon. Joe C. Morris, Chancellor
The defendant, Jackson Appliance Company, appeals the judgment of the Chancery Court of Madison County awarding plaintiff, Bobby Gates, twenty-five (25) percent permanent partial disability to the body as a whole. For the reasons stated in this opinion, We affirm the judgment of the trial court.

John Sands v. Murray Outdoor Products, Inc.
W2000-00468-SC-WCM-CV
Authoring Judge: L. Terry Lafferty, Senior Judge
Trial Court Judge: Julian P. Guinn, Judge
This workers' compensation appeal has been referred to the Special Worker's Compensation Panel of the Supreme Court inaccordance with Tennessee Code Annotated _ 5-6-225(e) for a hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The plaintiff has appealed contending that the trial court erred in granting the defendant a motion to dismiss his complaint pursuant to Rule 41, Tennessee Rules of Civil Procedure, for a work-related injury occurring on October 6, 1998. After a review of the entire record, briefs of the parties and applicable law, judgment of the trial court is reversed and remanded. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Circuit Court is Reversed and Remanded. L. TERRY LAFFERTY, SR. J., in which JANICE M. HOLDER, J., and JOE C. LOSER, JR., SP. J., joined. Ricky L. Boren, Jackson, Tennessee, for the appellant, John Sands. J. Arthur Crews, II and Michael A. Carter, for the appellee, Murray Outdoor Products, Inc. MEMORANDUM OPINION The plaintiff, age forty (4), testified that on April 29, 1997, while pulling a load of engines, he twisted his back and it popped. The plaintiff reported his injury and he was treated by Dr. John Holancin, but Workers' Compensation sent the plaintiff to see Dr. David Johnson who ran an MRI. The plaintiff lost no work and was on light duty for six (6) weeks. Between his return to work and October 1998, the plaintiff's back would lock up and his legs would tingle from prolonged standing about three to four times a month. The plaintiff stated that on October 6, 1998, he was picking up a unit off the floor to set it on the line, when his back went out and he hit the floor in pain. The plaintiff saw Dr. Holancin, who ordered a CT scan. At the request of the defendant, the plaintiff was referred to Dr. John Brophy. The plaintiff stated that he was restricted in his ability to do any lifting or bending while on light duty. The plaintiff testified that he saw Dr. Robert Barnett and that Dr. Barnett's nurse took down his history. When asked if he told the nurse about the October 1998 injury, the plaintiff stated, "I believe I did." In several parts of his testimony, the plaintiff is sure that he told the nurse about his October injury and cannot explain why such event is not recorded in her intake notes. The plaintiff admitted that while talking to Dr. Barnett he did not tell Dr. Barnett about the October injury. In his deposition, Dr. John D. Brophy, a neurosurgeon, testified that he first saw the plaintiff on January 6, 1999. Dr. Brophy obtained the plaintiff's historyin which the plaintiff injured his back in April 1997, while pulling a load of engines at work. An MRI was within normal limits. After conservative treatment, the plaintiff described approximately a twenty percent (2%) improvement from his injury. In October 1998, the plaintiff re-injured his back from lifting a lawn mower. Dr. Brophy reviewed the films of a CAT scan which revealed a bulging disc at L-5 S- 1. Dr. Brophy would not call this bulge a "ruptured disc." It was Dr. Brophy's opinion that the clinical exam of the plaintiff was a myofascial pain syndrome, with no evidence of radiculopathy. Dr. Brophy permitted the plaintiff to return to work full time without any restrictions on January 18, 1999. Dr. Brophy recommended to the plaintiff that he commence a physical exercise program, which consisted of walking and other activities. Dr. Brophy saw the plaintiff on March 17, 1999, with a complaint of no improvement in his pain syndrome. Dr. Brophy recommended that he continue his walking exercises. An evaluation of AP and lateral spine thoracic films demonstrated multi-level spondylosis. On October 6, 1999, the plaintiff returned with a complaint of continuing pain to his back and leg. Dr. Brophy's physical overall exam found the plaintiff's strength, gait, sensory, and symmetric reflexes normal. As of October 6, 1999, Dr. Brophy opined that the plaintiff had a zero permanent partial impairment rating, with no permanent restrictions. When asked about the differences in the MRI of 1997 and the CAT scan of 1998, the question was: Q. Doctor, certainly a lifting incident is capable of causing a bulging disc, is that correct? A. Yes. Q. And - - A. - - And the most common hist ory I get is I just woke up with it, Doctor, I don't understand. Q. But that's not the history you got in this case? A. No. -2-

Don Stone vs. Donald Brickey, et al
M2000-03093-COA-R3-CV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: Tom E. Gray
The trial court found that the plaintiff had a prescriptive easement over an old county road that abutted his land. The defendants argue that the trial court was in error because the plaintiff did not prove all of the elements required to establish a prescriptive easement. We affirm the trial court.

In re: Adoption of A.K.S.R. and A.T.S.R.
M2000-03081-COA-R3-CV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: Leonard W. Martin
This appeal stems from a petition by both a paternal aunt and the foster parents to adopt twenty-month-old twin girls. The trial court found that the paternal aunt should adopt the children because relatives have preference over non-relatives in adoption proceedings and the foster parents did not meet the terms of the contract they signed with the Department of Children's Services. We reverse the decision of the trial court and grant the petition of the foster parents.

John T. Bell, et al vs. Richard Gene Nolan, et al
M2000-02684-COA-R3-CV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: John W. Rollins
The parents of a woman who died after being assaulted by her husband on the premises of an American Legion post filed a wrongful death claim, which named the husband and the American Legion post as defendants. The parents alleged that the Legion's employees had failed to render assistance to the injured woman. The trial court dismissed the complaint against the American Legion, reasoning that the surviving spouse is the only party entitled to maintain an action for the wrongful death of the other spouse. We reverse.

Volunteer Investments, Inc. vs. Feller Brown Realty & Auction Co., et al
M2000-02644-COA-R3-CV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: Irvin H. Kilcrease, Jr.
A developer who purchased three real estate tracts at auction filed suit to rescind the purchase on the grounds of misrepresentation or mutual mistake. The trial court dismissed his complaint. We affirm.

Anthony Murray vs. Dewey Lineberry
M2001-00097-COA-R3-CV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: Julian P. Guinn
This appeal arises from a defamation action. The appellant sued the appellee for slander after the appellee aired a series of political advertisements including statements about the appellant, a deputy sheriff. The Wilson County Circuit Court granted the appellee's motion for summary judgment. We affirm the trial court's decision.

Jerome Beasley, et al vs. Lloyd Amburgy
M2000-03122-COA-R3-CV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: Barbara N. Haynes
A limousine driver, after taking Tylenol and two or three shots of novocaine for an abscessed tooth, suffered a blackout and lost control of the automobile. The trial court granted summary judgment to the driver and his employer on the ground that the blackout was not reasonably foreseeable. We affirm.

Williamson County, et al. v. State Board of Equalization
M2000-03178-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Ellen Hobbs Lyle
In this case, a consortium of counties and cities appeals the decision of the Chancery Court of Davidson County upholding the action of the Tennessee State Board of Equalization in applying depreciable life schedules forming a part of Tennessee Code Annotated section 67-5-903(f) to commercial and industrial tangible personal property and in holding that personal property is not constitutionally required to be valued at its actual value in the implementation of Tennessee Code Annotated section 67-5-1509(a). The only issues before this court are the constitutionality of Tennessee Code Annotated section 67-5-903(f) and Tennessee Code Annotated section 67-5-1509(a). We hold both statutes to be constitutional and affirm the Chancellor.

State of Tennessee v. Marcia C. Robinson and Sammy Claude Wilson
W2000-02085-CCA-R3-CD
Authoring Judge: Judge L. Terry Lafferty
Trial Court Judge: Judge Roy B. Morgan, Jr.

After a jury trial, Defendants were convicted of one count of attempt to manufacture methamphetamine and two counts of possession of methamphetamine. The trial court sentenced each Defendant to three (3) years in the Department of Correction for attempt to manufacture methamphetamine and eleven (11) months and twenty-nine (29) days for possession of methamphetamine. In this appeal as of right, Defendants assert that the trial court erred as to whether Defendant, Sammy Wilson, gave Investigator Markin consent to search his truck. From our review of the transcript of the motion to suppress, the trial record, briefs of the parties and applicable law, we affirm the judgment of the trial court.

Jerry Anderson v. State of Tennessee
W2000-03141-CCA-R3-CO
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Judge Lee Moore

Petitioner appeals the denial by the trial court of his writ of habeas corpus and writ of certiorari. Petitioner contended in his petition that he previously pled guilty in the Criminal Court of Madison County to the offenses of facilitation of first degree murder, conspiracy to commit especially aggravated robbery, and arson, and received an effective sentence of 60 years. He further contended that court did not have jurisdiction to try him as an adult; his rights to double jeopardy were violated as a result of his transfer to the Criminal Court; and he received ineffective assistance of trial counsel. On appeal, he claims the trial court erred in dismissing his petition without appointing counsel, without conducting a hearing, and by failing to make findings of fact and conclusions of law. We affirm the judgment of the trial court.

State of Tennessee v. Michael P. Healy
W1999-01510-CCA-R3-CD
Authoring Judge: Judge Jerry L. Smith
Trial Court Judge: Judge Joseph B. Dailey

On November 24, 1998, the Shelby County Grand Jury indicted the Defendant for one count of aggravated robbery and one count of aggravated assault. Following a subsequent jury trial, the Defendant was convicted on both counts. On September 30, 1998, after a sentencing hearing, the trial court sentenced the Defendant as a career offender to serve thirty years incarceration for the aggravated robbery consecutively to fifteen years for the aggravated assault. The court also ordered both sentences served consecutively to a sentence for which the Defendant was on parole. On appeal, the Defendant claims that the trial court should have instructed the jury to consider robbery and theft as lesser-included offenses of aggravated robbery and that the trial court should have instructed the jury to consider reckless endangerment, reckless aggravated assault and simple assault as lesser-included offenses of aggravated assault. After a review of the record, we affirm the judgment of the trial court.as lesser-included offenses of aggravated assault. After a review of the record, we affirm the judgment of the trial court., we affirm the judgment of the trial court.

Jerry L. Luster v. J. Larry Craven, Jr.
W2000-02217-CCA-R3-CD
Authoring Judge: Special Judge Cornelia A. Clark
Trial Court Judge: Judge Roy B. Morgan, Jr.

The petitioner, Jerry L. Luster, appeals pro se the summary dismissal of his petition for writ of habeas corpus. Because the petition was filed in the wrong county, we affirm the trial court's dismissal of the request for habeas corpus relief.

State vs. Frank Johnson
W2000-00386-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Chris B. Craft
The defendant was indicted by a Shelby County Grand Jury for driving while an habitual motor vehicle offender, felony evading arrest, and driving under the influence of an intoxicant, fourth offense (felony DUI), all charges arising from a single incident. The defendant pled guilty to driving while an habitual motor vehicle offender, a Class E felony, with punishment reserved until after trial of the other offenses. Following a jury trial, the defendant was found guilty of felony evading arrest, a Class E felony, not guilty of felony DUI, and sentenced to consecutive, six-year terms as a career offender for driving while an habitual motor vehicle offender and for felony evading arrest, resulting in an effective sentence of twelve years. The trial court also assessed fines of $2000 on each conviction. In this appeal as of right, the defendant argues that the evidence was insufficient as to the felony evading arrest conviction, that the jury should have been instructed as to lesser-included offenses, and that the sentences should not be served consecutively. Based upon our review, we affirm the judgments of the trial court.

State vs. Reginald Terry
W2000-00090-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: W. Fred Axley
The Defendant was convicted by a Shelby County jury of attempted aggravated burglary. The Defendant was sentenced as a Range I, standard offender to three years incarceration. The Defendant now appeals, arguing that (1) in spite of his untimely motion for a new trial, this Court should consider each issue he has presented on appeal, (2) there was insufficient evidence to support a conviction against the Defendant for attempted aggravated burglary, (3) the trial court erred in refusing to instruct the jury on the lesser-included offenses of aggravated criminal trespass and criminal trespass, (4) the trial court made an improper comment on the evidence in violation of the Tennessee Constitution, and (5) the trial court erred in allowing in rebuttal proof of other crimes committed by the Defendant. We affirm the judgment of the trial court.

State of Tennessee v. Eric D. Thomas
W1999-00337-CCA-R3-CD
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge Joseph B. Dailey

The Defendant, Eric D. Thomas, pled guilty to four counts of robbery and was sentenced to six years for each conviction. The sentences were ordered to run consecutively, which ruling the Defendant now appeals. The judgment of the trial court ordering the Defendant's sentences to run consecutively is reversed, and this matter is remanded for resentencing on the issue of consecutive sentences.

State of Tennessee v. Mario Rogers
W1999-01454-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Arthur T. Bennett

In 1999, a Shelby County jury found the Defendant guilty of aggravated robbery, and the trial court sentenced him as a Range I, standard offender to eight years incarceration. In this appeal as of right, the Defendant presents the following issues for our review: (1) whether the evidence presented at trial was sufficient to support his conviction; (2) whether the trial court erred by admitting into evidence the gun alleged to have been used in the robbery; (3) whether the trial court erred by allowing testimony by the victim concerning the death of the victim's mother; (4) whether the trial court improperly instructed the jury; and (5) whether the cumulative effect of errors at trial warrants a new trial. Having reviewed the record, we find no error and accordingly affirm the judgment of the trial court.

State of Tennessee v. Joyce Ann Rice
W2000-01766-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Roger A. Page

The defendant, a construction company payroll clerk, was convicted of fourteen counts of forgery, Class E felonies, and one count of theft of property over $1000, a Class D felony, for utilizing her position at the company to write and cash invalid checks on her employer's account. She was sentenced as a Range II, multiple offender to three years on each forgery conviction, and six years on the theft conviction, to be served concurrently for an effective sentence of six years. In this appeal as of right, the defendant argues that the trial court erred in allowing evidence of her prior crimes to be admitted at trial, and that the evidence was not sufficient to support her convictions. After a careful review, we conclude that the trial court did not err in allowing the State to impeach the defendant's credibility by questioning her about her prior convictions, and that the evidence was sufficient to support the jury's verdict. Accordingly, we affirm the judgment of the trial court.

State vs. Russell Snider
W2000-01240-CCA-R3-CD
Authoring Judge: Judge David H. Welles
Trial Court Judge: Chris B. Craft
The Defendant, Russell Snider, was convicted by a jury of third offense driving under the influence (DUI). He was sentenced to eleven months, twenty-nine days, with four months and twenty-nine days suspended. In this appeal as of right, the Defendant asserts (1) that he was prejudiced by the video recording of his performance of field sobriety tests because the video recording depicts an unqualified officer performing the horizontal gaze nystagmus test and (2) that the DUI sentencing statute is void for vagueness because it fails to give a person of ordinary intelligence fair notice that his or her conduct is forbidden by the statute. We hold that the Defendant was not prejudiced by the admission of the video and that the DUI sentencing statute is not void for vagueness. Therefore, we affirm the judgment of the trial court.

State of Tennessee v. Eric Phillips
W1999-01800-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge John P. Colton, Jr.

The defendant appeals and asserts that the evidence was insufficient to support his conviction for first degree premeditated murder. After review, we hold that the evidence is sufficient; therefore, we affirm the defendant's conviction.

Pearl Lynell Potts, Indiv.and Executor of the Estate of Gordon Ray Potts, Sr., Deceased, vs. Mary Potts Mayforth, et al vs. Alice Elizabeth Nelson
E2000-03116-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: G. Richard Johnson
The Trial Court entered a Default Judgment against Potts pursuant to Tenn. R. Civ. P. 37.02 and then summary judgment for plaintiffs. On appeal by defendants, we affirm the Judgment of the Trial Court.

State of Tennessee v. Donnell Booker
E2000-02137-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Mary Beth Leibowitz

The Defendant was convicted by a Knox County jury of aggravated assault, a Class C felony. The Defendant was sentenced as a Range II multiple offender to nine years incarceration in the state penitentiary. The Defendant now appeals, arguing that insufficient evidence was presented at trial to convict him of aggravated assault. Finding no error, we affirm the judgment of the trial court.

State of Tennessee v. Demetrius Holmes
E2000-02263-CCA-R3-CD
Authoring Judge: Judge J. Curwood Witt, Jr.
Trial Court Judge: Judge Richard R. Baumgartner

A Knox County jury convicted the defendant of aggravated robbery, and the trial court sentenced him as a Range I offender to eleven years incarceration. The defendant now appeals and raises the following issues: (1) whether the trial court erred by not granting a mistrial when a detective improperly testified that the Defendant was “well known for home invasions,” (2) whether the state failed to disclose fingerprint evidence in a timely fashion, and (3) whether sufficient evidence supported the defendant’s conviction for aggravated robbery. Finding that the trial court erred in denying the motion to declare a mistrial, we reverse the judgment of the trial court and remand for a new trial.

State of Tennessee v. Demetrius Holmes - Dissenting
E2000-02263-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Richard R. Baumgartner

I respectfully dissent. I agree with the majority opinion that the granting or denial of a mistrial is a matter within the sound discretion of the trial court and that a trial court should grant a mistrial only when it is of “manifest necessity.” I would add that the burden of establishing a “manifest necessity” is upon the appellant. State v. Williams, 929 S.W.2d 385, 388 (Tenn. Crim. App. 1996).

Karrie Gentry vs. Bryan Gentry
E2000-02714-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: L. Marie Williams
This is a divorce case. Karrie Beth Gentry ("Mother") was awarded primary residential custody of the parties' two minor children, and Bryan Keith Gentry ("Father") was ordered to pay child support of $2,100 per month. Father appeals, arguing that the trial court erred in imputing income to him for the purpose of determining child support. Because we find that the trial court properly calculated Father's income based upon what it found to be the only credible evidence presented at trial, we affirm.