Opinions

Govindaswamy Nagarajan vs. Sandra Scheick
M2000-02323-COA-R3-CV
Authoring Judge: Judge William C. Koch, Jr.
Trial Court Judge: Ellen Hobbs Lyle
This appeal is an outgrowth of complaints filed by a group of Tennessee State University students regarding the performance of their physics professor. After the students complained to the university, the professor filed a pro se complaint in the Chancery Court for Davidson County against the Tennessee Board of Regents, the university, four university administrators, and twenty-four students, alleging breach of contract, defamation, intentional infliction of emotional distress, and discrimination based on age, race, and national origin. The trial court dismissed the professor's complaint in its entirety in response to motions to dismiss filed by the university defendants and a number of the student defendants. The professor then filed serial "motion[s] to vacate the order of dismissal for just cause." The trial court denied the first motion and, treating the second motion as a Tenn. R. Civ. P. 60.02(2) motion, also denied the second. On this appeal, the professor seeks to raise twelve issues regarding the merits of his claim. However, the only matter properly before us is the denial of his second "motion to vacate the order of dismissal for just cause." We have determined that the trial court properly denied this motion. We have also determined that this appeal is frivolous.

Betty Frazier v. Saturn Corporation
M2002-01564-WC-R3-CV
Authoring Judge: Joe C. Loser, Jr., Sp. J.
Trial Court Judge: Robert L. Holloway, Judge
In this appeal, the employee insists the trial court erred in determining the date of her injury for the purpose of determining her average weekly wage and that the evidence preponderates against the trial court's findings as to the extent of her permanent disability. As discussed below, the panel has concluded the judgment should be modified with respect to the worker's compensation rate.

State vs. Clarence W. Carter
M2000-02230-SC-R11-CD
Authoring Judge: Justice William M. Barker
Trial Court Judge: Judge Steve R. Dozier

The defendant, Clarence W. Carter, was tried and convicted of conspiracy to sell cocaine and possession of cocaine with intent to manufacture, deliver or sell, and the defendant was sentenced as a Range Two multiple offender to consecutive sentences of thirty-six and sixteen years. The Court of Criminal Appeals affirmed both the convictions and sentences. Although there are several issues in this case, we granted permission to appeal primarily to determine whether the trial court committed reversible error in sentencing the defendant as a Range Two multiple offender when the only notice of intent to seek enhanced punishment filed by the State was in relation to an indictment that was superseded by the indictment upon which the defendant was tried. Additionally, the defendant argues on appeal that the indictment for possession with intent to deliver was insufficient to charge anything more than simple possession because it failed to contain the language that the defendant possessed the cocaine "with intent to deliver." Upon review, we conclude that the notice of intent to seek enhanced sentencing was sufficient as to the possession charge, but was not sufficient as to the conspiracy charge because conspiracy was not charged in the original indictment for which notice was given. We also hold that the indictment was sufficient to charge the offense of possession with intent to deliver. Finally, we hold that the defendant's remaining arguments regarding the sufficiency of the evidence and length of sentence are without merit. The case is therefore remanded to the trial court for re-sentencing on the conviction for conspiracy to sell cocaine.

State of Tennessee v. Kelvin Hobson
M2002-01462-CCA-R3-CD
Authoring Judge: Judge Joseph M. Tipton
Trial Court Judge: Judge J. Randall Wyatt, Jr.

Davidson County Criminal Court jury convicted the defendant, Kelvin Hobson, of two counts of aggravated sexual battery, a Class B felony, and the trial court sentenced him as a violent offender to concurrent ten-year sentences. The defendant appeals his convictions, claiming that (1) the evidence is insufficient; (2) the trial court improperly allowed the state to cross-examine him about prior bad acts; (3) the trial court improperly allowed state witnesses to give rebuttal testimony about his prior bad acts and his character for truthfulness; (4) the trial court improperly refused to give a curative instruction after the state shifted the burden of proof during closing argument; and (5) the trial court should have granted his new trial motion because the jury foreman mistakenly told other jurors during deliberations that the defendant would serve only probation for his aggravated sexual battery convictions. We conclude that the trial court committed reversible error by allowing state witnesses to testify on rebuttal about the defendant's prior bad acts and his character for truthfulness. Accordingly, we reverse the judgments of the trial court and remand the case for a new trial.

State of Tennessee v. John E. Turner
M2002-02454-CCA-R3-CD
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge James K. Clayton, Jr.

The Appellant, John E. Turner, appeals his conviction by a Rutherford County jury for especially aggravated robbery, a class A felony. The single issue for our review is whether the trial court erred by not suppressing Turner's statement to the police and the victim's gun, which was discovered as a result of his statement. After a review of the record, we conclude that the Appellant's statement was obtained in violation of his Fifth Amendment right to remain silent. Moreover, we conclude that the stolen weapon is also inadmissible unless, upon remand, the State can show either that the police had an independent, untainted source for the information leading to the gun or that the gun would have been inevitably discovered through routine police investigation. Accordingly, the judgment of conviction is reversed and the case is remanded for further proceedings consistent with this opinion.

State of Tennessee v. William Edward Crick
W2003-00146-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Julian P. Guinn

The defendant appeals from the trial court’s denial of an alternative sentence. The defendant pled guilty to a Class E felony, possession of a Schedule VI controlled substance with intent to manufacture, deliver, or sell. The trial court denied the defendant’s request for an alternative sentence and imposed a two-year sentence in the special needs facility of the Tennessee Department of Correction. We affirm the sentence imposed by the trial court, but remand for correction of the judgment to reflect a guilty plea rather than a jury verdict.

Roger L. Hickman v. State of Tennessee
E2002-01916-CCA-R3-PC
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge Ray L. Jenkins
The Appellant, Roger L. Hickman, appeals the dismissal of his petition for writ of habeas corpus collaterally attacking a 1986 misdemeanor conviction. We affirm dismissal of the petition upon grounds that (1) there is no showing that Hickman is currently "imprisoned or restrained of his liberty," as required by Tennessee Code Annotated Section 29-21-101, and (2) the petition fails to comply with the statutory requirements.

Roger L. Hickman v. State of Tennessee - Dissenting
E2002-01916-CCA-R3-PC
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Ray L. Jenkins
I differ with the majority opinion in two major areas. First, the majority finds it unnecessary to reach the question of whether a judgment of conviction that is silent as to whether a defendant had counsel or waived his right to counsel is voidable or void. For reasons hereafter contained, I conclude such a judgment of conviction is facially invalid or void.

State of Tennessee v. Darrell Glen Smith
E2002-01988-CCA-R3-CD
Authoring Judge: Judge Joseph M. Tipton
Trial Court Judge: Judge Ben W. Hooper, II

The defendant, Darrell Glen Smith, appeals as of right from his conviction by a jury in the Cocke County Circuit Court for first degree murder. The defendant was sentenced to life imprisonment with the possibility of parole. He contends that (1) the evidence is insufficient to support the jury's rejection of his insanity defense and (2) the trial court erred in failing to grant a new trial due to juror misconduct. We affirm the trial court's judgment of conviction.

State of Tennessee v.Terry Franklin Stogdill
E2002-02928-CCA-R3-PC
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge O. Duane Slone

The petitioner, Terry Franklin Stogdill, was convicted by a jury in the Claiborne County Criminal Court of one count of rape of a child and one count of incest. The trial court sentenced the petitioner to an effective twenty year sentence to be served in the Tennessee Department of Correction. Following an unsuccessful appeal of his convictions, the petitioner timely filed a petition for post-conviction relief. The petitioner now appeals the dismissal of his petition. Upon review of the record and the parties' briefs, we affirm the judgment of the post-conviction court.

Darrell Dwain Binkley v. Tennessee Diecasting-Harvard
02188-SC-WCM-CV
Authoring Judge: Arnold B. Goldin, Sp. J.
Trial Court Judge: Martha Brasfield, Chancellor
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel in accordance with the Tenn. Code Ann. Section _5-6-225 (e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The Appellant, employer, argues that the trial court erred in finding that the employee sustained a herniated disc as a result of his on the job injury; in awarding temporary total and permanent partial disability benefits and in not applying the "Last Injurious Injury Rule" to dismiss the employee's claim against Appellant. The Appellee, employee, argues that the trial court erred in limiting employees permanent award to 2.5 times the anatomical rating pursuant to T.C.A. _5-6-241(a)(1) because employee's return to work was not "meaningful". For the reasons discussed below, the panel has concluded that the judgment of the trial court should be affirmed in all respects. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Chancery Court Affirmed ARNOLD B. GOLDIN, Sp. J., in which HOLDER, J. and LOSER, Sp. J. joined. Byron K. Lindberg and Peggy Tolson, Tolson and Associates, Brentwood, Tennessee, for the appellant, Tennessee Diecasting-Harvard Industries and ITT Hartford Insurance Group D. Michael Dunavant, Ripley, Tennessee, for the appellee, Darrell Dwain Binkley MEMORANDUM OPINION STANDARD OF REVIEW The review of the findings of the trial court is de novo upon the record of the trial court, accompanied by a presumption of the correctness of the finding, unless the preponderance of the evidence is otherwise. T.C.A. _ 5-6-225(e)(2). Stone v. City of McMinnville, 896 S.W. 2d 548,55 (Tenn. 1995). This court is not bound by the trial court's findings, but instead conducts its own independent examination of the record to determine where the preponderance lies. Galloway v. Memphis Drum Service, 822 S.W.2d 584, 586 (Tenn. 1981). FACTUAL BACKGROUND The employee, Darrell Dwain Binkley, filed his complaint for workers' compensation benefits alleging that he sustained an injury to his lower back on September 29, 1997, when he lifted a five gallon bucket of oil, weighing approximately 75 pounds, while at work for his employer, Tennessee Diecasting. His complaint alleged that his injury was permanent and that he was entitled to benefits for both temporary total and permanent partial disability, in addition to current and future medical care. Appellant denied the employee's claim in its entirety and further alleged that if the employee sustained an on the job injury that the court should dismiss the claim against it based on the "Last Injurious Injury Rule". Following a trial on May 21, 22, the court found that the employee sustained a compensable injury to his low back and awarded him five (5%) per cent permanent partial disability to the body as a whole. The court further found that the employee was entitled to benefits for a period of temporary total disability and that the "Last Injurious Injury Rule" did not apply to the facts of this case. The employer has appealed from the entire award. The employee was 42 years old at the time of trial. He had a varied work history. He had been in the military, albeit briefly; had performed seasonal work at two different cotton gins over several years; had worked as a laborer at factories and warehouses and had been a maintenance man for two adult family homes in the State of Washington, one of which was owned by his former wife. He had also worked as a laborer and maintenance man for a diesel company. While working for this employer in 1988, he slipped and sustained a herniated disc at the L5-S1 level for which he underwent surgery. He received a workers' compensation settlement as a result of this injury. LEGAL AND MEDICAL CAUSATION The employee went to work for the Appellant in 1997. His duties were to operate a machine and to dispense parts. His job required constant lifting, bending and stooping. Part of his job required him to keep the machines well oiled and lubricated. The oil for the machines was carried in the plant in large open buckets. The oil would splash out of the buckets onto the floor causing a slipping hazard. On the day of his injury, he was preparing to carry oil to his machine in a 5 gallon bucket, -2-

Willie Jean Head v. Nissan Motor Manufacturing
M2002-1908-WC-R3-CV
Authoring Judge: Joe C. Loser, Sp. J.
Trial Court Judge: Carol L. Mccoy, Chancellor
In this appeal, the employee insists the trial court erred in disallowing benefits for a left shoulder injury for failure to give timely written notice. As discussed below, the panel has concluded the evidence fails to preponderate against the findings of the trial court.

Thomas K. Bowers vs. Gutterguard of Tennessee
M2002-02877-COA-R3-CV
Authoring Judge: Judge Frank Clement, Jr.
Trial Court Judge: Hamilton V. Gayden, Jr.
The defendant challenges the Circuit Court's dismissal of an appeal from General Sessions Court for failure to comply with Davidson County Local Rule of Practice 20(b). The Local Rule required the appealing party to set the matter for trial no more than 45 days following the Circuit Court Clerk's receipt of the appeal. Though the defendant had filed a motion to set, an order setting the matter for trial had not been entered when the Circuit Judge dismissed the appeal and made the judgment of the General Sessions Court the final judgment. The defendant/appellant sought Rule 60.02(1) relief, claiming excusable neglect, which was denied. Based upon recent authority, determination of "excusable neglect" for Rule 60 purposes now requires an evaluation of three factors: whether the defaulting party's conduct was willful, whether there exists a meritorious defense, and whether the non-defaulting party has been prejudiced. We find the defendant's negligence was not willful and that the plaintiff suffered no prejudice; however, the record is silent concerning whether the defendant has a meritorious defense. Therefore, we reverse the trial court and remand the matter to the Circuit Court for further proceedings consistent with this ruling.

Kathy Clark vs. Randall McClung
M2003-00552-COA-R3-CV
Authoring Judge: Judge Frank Clement, Jr.
Trial Court Judge: Hamilton V. Gayden, Jr.
Due to plaintiffs' failure to file an alias summons within one year of the date the original complaint and summons were filed, the Circuit Court granted defendant's Motion to Dismiss for plaintiffs' failure to Comply with Rule 3, Tenn. R. Civ. P. Plaintiffs appealed asserting the error was due to the Circuit Court Clerk's refusal to file the alias summons and that the trial court abused its discretion in dismissing the case. We affirm the judgment of the trial court.

State of Tennessee v. Calvin Owens
W2003-00033-CCA-R3-CD
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge Joseph B. Dailey

The Defendant, Calvin Owens, was convicted of two counts of aggravated robbery, one count of attempt to commit especially aggravated robbery, and one count of attempted second degree murder, all Class B felonies. After a sentencing hearing, the trial court sentenced him as a Range I offender to eleven years for each of his four convictions. The trial court ordered three of the sentences to be served consecutively, with the sentence for the remaining conviction to be served concurrently, resulting in an effective sentence of thirty-three years. In this direct appeal, the Defendant argues that the evidence is insufficient to support his convictions and that the trial court erred in sentencing him to thirty-three years. We affirm the judgments of the trial court.

William Terry v. State of Tennessee
W2003-00218-CCA-R3-PC
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Bernie Weinman

Petitioner, William Terry, appeals the post-conviction court’s denial of his petition for post-conviction relief. Petitioner argues that the post-conviction court erred in finding that Petitioner’s plea of guilty was voluntary and knowing and in finding that Petitioner’s trial counsel rendered effective assistance of counsel prior to and during plea negotiations. For the reasons discussed herein, we affirm the post-conviction court’s dismissal of the petition for post-conviction relief.

Dept of Children's Srvcs. vs. A.W.S. & E.S. In Re: R.T.S.
E2002-02227-COA-R3-JV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: William T. Denton
The State of Tennessee, Department of Children's Services ("DCS") filed a petition seeking to terminate the parental rights of A.W.S. ("Mother") and E.S. ("Father"), the biological parents of the minor child, R.T.S. ("the Child"). The Juvenile Court granted DCS' petition to terminate Mother's and Father's parental rights. Both Mother and Father appeal. We affirm.

State of Tennessee v. Treacy F. Lewis
M2002-01694-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Robert E. Burch

Defendant, Treacy F. Lewis, entered a plea of nolo contendre to the offense of murder in the second degree. Following a sentencing hearing, the trial court sentenced Defendant to twenty-three years in the Tennessee Department of Correction. Defendant appeals the length of her sentence, arguing that the trial court misapplied enhancement factor (4), the victim was particularly vulnerable because of age and physical disabilities, and failed to give sufficient consideration to the applicable mitigating factors. Defendant does not challenge the application of enhancement factor (9), based upon the use of a gun in the commission of the offense. Based on a review of the record, we conclude that the trial court improperly applied enhancement factor (4) in its sentencing determinations. Accordingly, we modify the judgment of the trial court to reduce the sentence to twenty-two years.

Ronald Paul v. State
M2003-01244-COA-R9-CV


Appellant, a state prison inmate, filed a claim with the Tennessee Claims Commission against the State of Tennessee for the alleged malpractice of Dr. Paul Somers, a physician acting under contract with the Department of Corrections, to provide medical care for inmates. The Commission granted summary judgment on the basis that Dr. Somers was not a "state employee" within the meaning of Tennessee Code Annotated section 8-42-101(a)(3). We affirm the action of the Commission.

Carrol Preston Flannary v. Joyce Ann Flannary
E2002-00869-SC-R11-CV
Authoring Judge: Justice Janice M. Holder
Trial Court Judge: Judge Ben K. Wexler

We granted permission to appeal to determine whether the trial court erred in dividing as marital property funds that were missing at the time the divorce complaint was filed. We hold that the missing funds are not marital property that can be divided between the parties. However, we also conclude that the trial court may properly consider Husband's careless handling of those funds in distributing property that does constitute marital property. Therefore, we affirm the judgment of the Court of Appeals as modified, and we remand the case to the trial court for reconsideration of its property division and alimony award.

03-03-026-CC
03-03-026-CC

Trial Court Judge: A. Andrew Jackson

Edward Caksackkar v. Goodyear Tire
W2002-02368-SC-WCM-CV
Authoring Judge: Arnold B. Goldin, Sp.J.
Trial Court Judge: William B. Acree, Circuit Judge
The trial court found that the plaintiff was permanently and totally disabled. The parties do not contest this finding. The appellant, Second Injury Fund, argues, however, that the trial court erred in its apportionment of liability between the Fund and the employer when it held that only 25% permanent vocational impairment should be apportioned to the employer and 75% apportioned to the Fund as a result of the plaintiff's last back injury. For the reasons discussed below, the Panel has concluded that the judgment of the trial court should be modified so that 75% permanent vocational impairment is apportioned to the employer and 25% apportioned to the Fund.

Jennifer Biscan v. Franklin Brown
M2001-02766-COA-R3-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: Carol L. Soloman
After attending a party where alcohol was present, a minor intoxicated driver and minor guest passenger were involved in an automobile accident in which the passenger suffered serious injury. The passenger sued the driver and the adult host of the party. The jury awarded the minor guest passenger damages and allocated fault 70% to the minor intoxicated driver, 15% to the adult party host, and 15% to the minor guest passenger. The driver and the host appeal various rulings of the trial court. We affirm.

In the Matter of: D.L.(P.)C.,et al
M2003-00088-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Muriel Robinson
Mother appeals the trial court's award of custody of her four minor children to the Tennessee Department of Children's Services based on a finding of dependency and neglect. We affirm.

Milburn L. Edwards v. State of Tennessee
M2002-02124-CCA-R3-PC
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge J. Randall Wyatt, Jr.

Petitioner, Milburn L. Edwards, filed a petition for post-conviction relief, which was subsequently amended. Following an evidentiary hearing, the petition for post-conviction relief was dismissed. On appeal, Petitioner argues (1) that the post-conviction court erred in not stating its findings of fact and conclusions of law in its order denying Petitioner post-conviction relief; (2) that Petitioner received ineffective assistance of counsel at trial and on appeal; and (3) that Petitioner was not afforded a full and fair evidentiary hearing. After a thorough review of the record, we find no error and affirm the judgment of the post-conviction court.