The appellant, Douglas C. Carr, pled guilty in the Shelby County Criminal Court to one count of driving while an habitual motor vehicle offender. Pursuant to the plea agreement, the petitioner was sentenced as a standard Range I offender to eighteen months incarceration in the Shelby County Correction Center with the manner of service to be determined by the trial court. The trial court denied the appellant alternative sentencing, and, on appeal, the appellant raises the following issue for our review: whether the trial court erred in denying the appellant alternative sentencing. Upon review of the record and the parties' briefs, we affirm the judgment of the trial court.
Shelby
Court of Criminal Appeals
Linda Sue Pinkard v. Findlay Industries, Inc. M2000-01320-WC-R3-CV
Authoring Judge: Joe C. Loser, Jr., Sp. J.
Trial Court Judge: Larry Ross, 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 insists (1) the trial court's finding of permanent partial impairment or disability is contrary to the preponderance of the evidence, (2) the trial court erred in denying the employer's request for the appointment of a neutral physician, and (3) the award of permanent partial disability benefits on the basis of 6 percent to the body as a whole is excessive. As discussed below, the panel has concluded the judgment should be affirmed. Tenn. Code Ann. _ 5-6-225(e) (2) Appeal as of Right; Judgment of the General Sessions Court of Warren County Affirmed. JOE C. LOSER, JR., SP. J., in which ADOLPHO A. BIRCH, JR., J., and JAMES WEATHERFORD, SR. J., joined. Patrick A. Ruth, Nashville, Tennessee, for the appellant, Findlay Industries, Inc. William Joseph Butler and Frank D. Farrar, Lafayette, Tennessee, for the appellee, Linda Sue Pinkard. MEMORANDUM OPINION At the time of the trial on March 17, 2, the employee or claimant, Linda Sue Pinkard, was 36 years old with a ninth grade education and no special skills or training. She did have experience as a production worker and was employed by Findlay, a sewing factory, for more than ten years. On November 24, 1998, while lifting material onto a table at work, she felt a sudden pull in her back. Later that night she felt numbness in her legs and tingling in her toes. She was sent to Riverpark Hospital for emergency care and presented with a panel of possible treating physicians, from whom she chose Dr. Robert Dimick, a neurosurgeon, in Nashville. Dr. Dimick released her after providing conservative care. Thereafter, she saw Dr. John Thompson on the recommendation of her attorney. Dr. Dimick diagnosed low back pain and spasm, degenerative disc disease, a protruded disc and stenosis, with mild to moderate pressure on the nerve roots. The doctor conceded the injuries could have been caused or aggravated by trauma at work. Without measuring her loss of motion or sensation, Dr. Dimick estimated her permanent impairment rating at zero percent. Dr. Thompson, an orthopedic surgeon in Sparta, opined that the claimant's injuries were work-related. He estimated her permanent impairment at 17 percent to the whole body and restricted her from lifting more than 2 pounds occasionally, 1 pounds frequently or 5 pounds repetitively. He prescribed standing no more than 3 minutes at a time or more than 5 minutes of each hour, no more than occasional bending, stooping, kneeling and no squatting, climbing, crouching, crawling or twisting. Dr. S. M. Smith, an orthopedic surgeon in Jamestown, saw the claimant for an independent medical examination and evaluation in July 1999. Dr. Smith diagnosed a ruptured disc at L5-S1. He estimated the claimant's permanent impairment at 19 percent to the whole body and prescribed permanent restrictions. The claimant's own testimony, supported by other lay proof, was that she could not work within her restrictions. She was unable to continue in a janitorial service job that she had held before her injury at Findlay. She did return to work for Findlay at a lower paying job in the parts room, but is concerned whether she would be able to find any work if she lost her job. Upon the above summarized evidence, the trial court found the claimant's permanent medical impairment to be 15 percent to the body and awarded permanent partial disability benefits based on 6 percent to the body as a whole. 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). This tribunal is not bound by the trial court's findings but instead conducts an independent examination of the record to determine where the preponderance lies. Galloway v. Memphis Drum Serv., 822 S.W.2d 584, 586 (Tenn. 1991). Where the trial judge has seen and heard the witnesses, especially if issues of credibility and weight to be given oral testimony are involved, considerable deference must be accorded those circumstances on review, because it is the trial court which had the opportunity to observe the witnesses' demeanor and to hear the in-court testimony. Long v. Tri-Con Ind., Ltd., 996 S.W.2d 173, 177 (Tenn. 1999). The appellate tribunal, however, is as well situated to gauge the weight, worth and significance of deposition testimony as the trial judge. Walker v. Saturn Corp., 986 S.W.2d 24, 27 (Tenn. 1998). The extent of an injured worker's vocational disability is a question of fact. Story v. Legion Ins. Co., 3 S.W.3d 45, 451 (Tenn. 1999). The appellant contends the trial judge should have rejected Dr. Smith's opinion because his examination was conducted in the claimant's attorney's office and because Dr. Smith's opinion is -2-
Warren
Workers Compensation Panel
State of Tennessee v. Laverne Long W2000-02773-CCA-R3-CD
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge Arthur T. Bennett
The Defendant, Laverne Long, entered a guilty plea to reckless homicide, a Class D felony, in exchange for a two year sentence as a Range I, standard offender. Following an evidentiary hearing on the Defendant's motion to suspend her sentence, the trial court denied alternative sentencing. The Defendant now appeals as of right from the denial of alternative sentencing. We find no error; thus, we affirm the judgment of the trial court.
The defendant was indicted for attempted first degree murder. A Shelby County jury convicted the defendant of the lesser-included offense of attempted voluntary manslaughter, and the trial court sentenced him to four years imprisonment. In this appeal, the defendant alleges: (1) his insanity defense was established by clear and convincing evidence; (2) the trial court erroneously admitted statements made by the defendant and a weapon seized from his vehicle; (3) the trial court erroneously restricted the testimony of a psychiatrist by disallowing his statement that the defendant was committable if found not guilty by reason of insanity, while allowing him to testify that the defendant stated he believed he would be free to go home within 60 to 90 days if adjudicated not guilty by reason of insanity; (4) the trial court erroneously allowed the state to call a psychiatrist because the defense was not notified pre-trial that he would be an expert witness; (5) the trial court improperly found that a psychiatrist was qualified to testify as an expert; and (6) the trial court erroneously refused the defendant's request to have the opening and rebuttal closing arguments. After a through review of the record, we reverse the judgment of conviction, modify the judgment to “Not Guilty by Reason of Insanity,” and remand for further proceedings pursuant to Tenn. Code Ann. § 33-7-303.
The petitioner, Marcus D. Polk, pled guilty in the Shelby County Criminal Court to criminal attempt to commit first degree murder, especially aggravated robbery, and first degree murder and received a total effective sentence of life imprisonment plus twenty years. Subsequently, the petitioner filed a petition for post-conviction relief alleging the ineffective assistance of his plea counsel, which petition was denied by the post-conviction court. Upon review of the record and the parties' briefs, we affirm the judgment of the post-conviction court.
Shelby
Court of Criminal Appeals
State of Tennessee v. Anthony Perry W1999-01370-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Joseph B. Brown
The defendant appeals his convictions for first degree felony murder, especially aggravated kidnapping, and conspiracy to commit felony murder. After careful review, we conclude that the evidence is sufficient to support the defendant's convictions for first degree felony murder and especially aggravated kidnapping. Further, we hold that conspiracy to commit felony murder is not a recognizable offense in Tennessee. Therefore, we affirm the defendant's convictions for first degree felony murder and especially aggravated kidnapping. We reverse and dismiss the defendant's conviction for conspiracy to commit felony murder.
The petitioner was originally convicted by a Shelby County jury of rape of a child. The conviction was affirmed on direct appeal. The petitioner sought post-conviction relief, which was denied by the post-conviction court. In this appeal as a matter of right, the petitioner contends that his trial counsel provided ineffective assistance of counsel. After a thorough review of the record, we conclude that the trial court correctly denied post-conviction relief.
The petitioner was originally convicted by a Shelby County jury of first degree murder and received a sentence of life imprisonment. His conviction was affirmed on direct appeal. The petitioner filed a pro se post-conviction petition, counsel was appointed, and the petition was denied. In this appeal, the petitioner alleges that this matter should be remanded to the post-conviction court for a new hearing since he was unable to present his claim for relief. After a thorough review of the record, we conclude that the petitioner is entitled to a new post-conviction hearing.
Shelby
Court of Criminal Appeals
Kimberly J. Svacha, et al vs. Waldens Creek Saddley Club, et al E2000-03121-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Rex Henry Ogle
The trial court granted defendants' motion for summary judgment relying, at least in part, on oral testimony from one of the plaintiffs. This testimony was not transcribed, filed with the trial court, and provided to this court as part of the record on appeal. Due to the somewhat peculiar procedural aspects of this case, we conclude that defendants had the responsibility to file a transcript of this testimony. Because we cannot evaluate the propriety of the grant of summary judgment without having before us this evidence relied on by the trial court, we vacate the grant of summary judgment.
Sevier
Court of Appeals
Jerry Grace, et al vs. Mountain States Health Alliance E2000-03031-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: Thomas J. Seeley, Jr.
In this medical malpractice suit the Trial Court granted a summary judgment in favor of Mountain States Health Alliance, d/b/a/ Johnson City Medical Center Hospital and five Doctors. The Trial Court overruled the Plaintiffs' motion to alter or amend his determination that all Defendants were entitled to summary judgment. As to the Doctors, the determination was predicated upon the motion to alter or amend not being timely filed, and as to the Medical Center on the grounds that the delay in submitting materials accompanying the motion to alter or amend was not justified. We affirm.
Washington
Court of Appeals
Tex Helton, et al vs. Colonial Loan Assoc., Inc. et al E2001-00060-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: John K. Wilson
Tex Helton and his wife sue Colonial Loan Association, Inc., and Lakeview Motors, Inc., seeking damages in connection with Colonial Loan's repossession of an automobile sold to them by Lakeview Motors. The Trial Court granted a summary judgment as to Colonial Loan. The claim as to Lakeview Motors has been concluded and this appeal only concerns the granting of a summary judgment in favor of Colonial Loan. We vacate the order granting summary judgment and remand.
Hawkins
Court of Appeals
Tex Helton, et al vs. Colonial Loan Assoc., Inc. et al E2001-00060-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: John K. Wilson
Tex Helton and his wife sue Colonial Loan Association, Inc., and Lakeview Motors, Inc., seeking damages in connection with Colonial Loan's repossession of an automobile sold to them by Lakeview Motors. The Trial Court granted a summary judgment as to Colonial Loan. The claim as to Lakeview Motors has been concluded and this appeal only concerns the granting of a summary judgment in favor of Colonial Loan. We vacate the order granting summary judgment and remand.
Hawkins
Court of Appeals
Peggy Lane, et al vs. Luella Spriggs, et al E2001-00163-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Telford E. Forgerty, Jr.
This case involves the validity of an unsigned warranty deed in the plaintiffs' chain of title. Following a bench trial, the court below reformed the deed to add the missing signature. The defendants appeal, arguing, among other things, that the unsigned deed is inoperative and cannot be reformed. We affirm.
Cocke
Court of Appeals
Investors Group I, LTD. vs. Knoxville's Community Dev. Corp. E1999-00395-COA-R3-CV
Authoring Judge: Sr. Judge William H. Inman
Trial Court Judge: Sharon J. Bell
The complaint seeking damages for breach of contract was signed and filed by a general partner of Investors Group I, Ltd., a limited partnership. The Chancellor dismissed the case, holding the complaint was void because a limited partnership is a legal entity, and can neither appear pro se nor by a general partner who is not a licensed attorney. We affirm.
Knox
Court of Appeals
Shirley Shelburne vs. Frontier Health, et al E2000-02551-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Thomas J. Seeley, Jr.
This is a negligence action that finds its genesis in the suicide of a county jail inmate. Prior to his death, the decedent had been evaluated by Richard Kirk, a member of a crisis response team operated by the defendant Woodridge Hospital, a facility owned and operated by the defendant Frontier Health. Kirk concluded the decedent did not suffer from any psychiatric illness and did not require further care or treatment. The widow of the decedent, Shirley A. Shelburne, individually and as the next friend of her son, Travis Lee Shelburne, sued Frontier Health on the basis of vicarious liability. In response to the defendant's third motion for summary judgment, the trial court dismissed the plaintiff's action. The plaintiff filed a motion to alter or amend the grant of summary judgment, which was denied. The plaintiff appeals, arguing (1) that this case should be remanded for the trial court to reconsider the evidence submitted in support of the plaintiff's motion to alter or amend in light of the Supreme Court's decision in Harris v. Chern, 33 S.W.3d 741 (Tenn. 2000); (2) that Frontier Health is not entitled to summary judgment, which was granted on the basis of Kirk's alleged statutory immunity; and (3) that Frontier Health's third motion for summary judgment constitutes an improper "appeal" of the denial of its second summary judgment motion by a different trial judge. We affirm.
Carter
Court of Appeals
Dennis Mauk vs. Debra Perry, et al E2001-00485-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Thomas R. Frierson, II
The plaintiff seeks a judicial declaration regarding the proper interpretation of a will. The trial court found a will provision leaving "real property and contents" to the decedent's son, the plaintiff Dennis Mauk, is not ambiguous and that the word "contents" includes a 27-year old mobile home on the decedent's property. The decedent's other four children appeal, contending the will is ambiguous. They argue the trial court erred in failing to consider parol evidence as to the meaning of the subject language. They further contend the trial court erred in ordering a $6,000 bequest to the appellants to be paid into court, thus making it subject to the debts of the estate. We modify the trial court's judgment to provide that the share of personal property bequeathed to each of the decedent's children should be burdened with one-fifth of the decedent's debts. In all other respects, the trial court's judgment is affirmed.
Petitioner, James Richard Bishop, was convicted of felony murder, especially aggravated kidnapping and aggravated burglary. Following a sentencing hearing, Petitioner was sentenced to life imprisonment for the felony murder and concurrent sentences of twenty years and five years respectively for the especially aggravated kidnapping and aggravated burglary. On appeal, this Court affirmed the judgment of the trial court. State v. James Richard Bishop, No. 03C01-9308-CR-00268, 1994 Tenn. Crim. App. LEXIS 536, at *1, Knox County (Tenn. Crim. App., Knoxville, August 18, 1994), perm. to appeal denied (Tenn. 1994). Petitioner filed a Petition for Post-Conviction Relief in the Knox County Criminal Court, which the post-conviction court subsequently denied. He challenges the denial of his petition, raising the following issue: whether the trial court erred in dismissing his Petition for Post-Conviction Relief, based upon a ruling that Petitioner's allegations of ineffective assistance of counsel were without merit. Based upon our review of the record and the parties' briefs, we affirm the judgment of the trial court.
Knox
Court of Criminal Appeals
Arvil Holt, et a; vs. Zula Parton E2000-02695-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Ben W. Hooper, II
Arvil A. Holt and Beulah Holt Jones ("Plaintiffs") filed this will contest against one of their sisters, Zula Holt Parton ("Defendant"), regarding their Mother's will ("Will"). The case was tried by a jury. During the second day of the jury's deliberations, the Trial Court engaged in ex parte communications with the jury regarding their answers to special interrogatories in a "Special Verdict Form" and their apparent deadlock on the general verdict. The jury foreperson indicated on two occasions that the jury would like to deliberate further. Over objection of Defendant's counsel, however, the Trial Court did not allow for further jury deliberations and entered its judgment. Defendant appeals. We vacate and remand.
John Patterson v. The Phelan Company, Inc. W1998-00598-SC-WCM-CV
Authoring Judge: Don R. Ash, Sp. J.
Trial Court Judge: George R. Ellis, Chancellor
The workers'compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated _50-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The trial court found the plaintiff sustained a twenty-two and one-half percent permanent partial disability to the body as a whole as a result of an on-the-job injury to his neck. The defendant claims the evidence does not support the finding. We affirm the judgment of the trial court.
Gibson
Workers Compensation Panel
Susan Green v. Leon Moore, et al. M2000-03035-COA-R3-CV
Trial Court Judge: Robert E. Lee Davies
This appeal arises from the breach of a settlement agreement entered into by the Appellants and the Appellee. The Appellee filed a complaint against the Appellants in the Circuit Court for Williamson County, seeking damages for loss of reputation, embarrassment, humiliation, lost wages, loss of earning capacity, and loss of the ability to advance. The Appellants filed a motion to dismiss on the basis that the action was barred by the statute of limitations. The trial court granted in part and denied in part the motion to dismiss.
Williamson
Court of Appeals
Thomas White v. Kathy White M2000-02674-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Arthur E. Mcclellan
This appeal arises from the Appellant's filing of a Petition to Modify the Final Decree of Divorce in the Circuit Court of Sumner County. The Appellant requested a downward deviation in child support and a reduction in alimony. The Appellant also requested that he no longer be required to reimburse the Appellee for health insurance coverage. The Appellee filed a Counter-Petition requesting an upward deviation in child support. Following a trial on the Petition and Counter-Petition, the trial court entered an order reducing the Appellant's child support obligation to $1,000.00 per month. The trial court declined to modify the award of rehabilitative alimony and health insurance coverage. The Appellant appeals the decision of the Circuit Court of Sumner County setting child support at $1,000.00 per month and refusing to modify the award of rehabilitative alimony and health insurance coverage. For the reasons stated herein, we affirm in part and reverse in part the trial court's decision.
Sumner
Court of Appeals
Humphreys County Utility Dist. vs. Schatz Underground Cable, Inc. M2000-02650-COA-R3-CV
Authoring Judge: Judge W. Frank Crawford
Trial Court Judge: Allen W. Wallace
In this negligence action, Plaintiff sued Defendant for damages in connection with the rupture of a gas line. Following a bench trial, the trial court entered judgment for Plaintiff. Defendant appeals. We affirm.
