Carolyn King v. Tecumseh Products Company
W1998-00699-W C-R3-CV
Authoring Judge: John K. Byers, Sr. J.
Trial Court Judge: Hon. George R. Ellis,
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. Review of the findings of fact made by the trial court is de novo upon the record of the trial court, accompanied by a presumption of the correctness of the findings, unless the preponderance of the evidence is otherwise. Tenn. Code Ann. _ 5-6- 225(e)(2). Stone v. City of McMinnville, 896 S.W.2d 548, 55 (Tenn. 1995). The application of this standard requires this Court to weigh in more depth the factual findings and conclusions of the trial court in a workers' compensation case. See Corcoran v. Foster Auto GMC, Inc., 746 S.W.2d 452, 456 (Tenn. 1988). The trial court found that the employee had sustained 3 percent permanent partial disability to the right upper extremity and twenty percent permanent partial disability to the body as a whole for psychological injury. The employer appeals, and argues that the trial court erred by awarding excessive benefits for the scheduled member, by awarding any benefits for the mental condition, and by by ordering additional temporary total benefits. We affirm the judgment of the trial court except insofar as it provides for two awards of permanent partial disability rather than one. On that issue, we remand the case to the trial court for a finding of permanent partial disability in accordance with the limitations set forth in T.C.A. _ 5-6-27(3)(c).

Peggy Hammond v. National Health Corp d/b/a Athens Health Care Center
03S01-9812-CH-00149
Authoring Judge: Hon. Earl Henley, Chancellor
Trial Court Judge: Hon. Earl Henley
This worker's compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with the provisions of Tennessee Code Annotated _5-6-225 (e) (3) (1998 Supp.) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The Trial Court found the worker to suffer from a condition known as reflex sympathetic dystrophy, and awarded the Appellee forty-five percent vocational disability apportioned to the body as a whole. The employer appeals asserting a number of grounds for reversal. We have considered each of the issues raised on appeal, and further we have weighed the evidence ourselves, as we are required to do, with a presumption of correctness of the decision of the Trial Judge as to factual matters, and without presumption as to legal issues. We have considered the testimony presented in the record, including the depositions of a number of medical professionals, and the record of live testimony presented before the Trial Judge. We find that the award of the Trial Judge should be modified to provide for twenty-five percent vocational disability, and further modified with regard to costs of medical and psychological care, but otherwise the decision of the Trial Judge should be affirmed.

State of Tennessee v. Gregory Austin
W1999-01441-CCA-R3-CD
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge Joseph B. Dailey

The appellant, Gregory Austin, appeals his jury conviction for first degree premeditated murder. The appellant was originally indicted for felony murder in the perpetration of attempted robbery and first degree premeditated murder. Because the State did not seek a sentence of death or life without parole, the trial court imposed a life sentence. On appeal, the appellant argues the trial court erred in failing to: (1) suppress the appellant’s statement to the police; (2) permit redaction of portions of appellant’s statement to the police prior to its admission; and (3) contemporaneously instruct the jury regarding prior inconsistent statements.

State of Tennessee v. David Remus
W1999-01448-CCA-R3-CD
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge Chris B. Craft

The appellant, David Remus, appeals the jury verdict of the Shelby County Criminal Court finding him guilty of burglary of a building, a Class D felony.. The trial court imposed a sentence of three years and three months in the county workhouse.  On appeal, the appellant challenges (1) the sufficiency of the evidence; (2) the jury’s viewing of the appellant while “shackled;” and (3) the trial court’s application of an enhancement factor in determining the appellant’s sentence.

State of Tennessee v. Kermit Maurice Cozart
W1999-00022-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Julian P. Guinn

The defendant, Kermit Maurice Cozart, appeals from a guilty verdict returned against him by a Henry County jury for Aggravated Kidnapping, a Class B felony. The trial court sentenced the defendant to ten years at 100% as a violent offender for the aggravated kidnapping. The defendant contends that the trial court erred in failing to give the defendant’s requested special jury instruction. The defendant had requested that the trial court specifically charge the jury on aggravated kidnapping in the context of a robbery in accordance with the language of State v. Anthony, 817 S.W.2d 299 (Tenn. 1991). The defendant contends that the court’s instruction left the jury without guidance sufficient to decide whether the defendant should stand convicted for the offense of aggravated kidnapping. After careful review, we AFFIRM the instruction, judgment, and sentence from the trial court.

Rueben N. Pelot, III, v. Nicholas S. Cakmes
E1999-02550-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard

Defendant Nicholas S. Cakmes files a petition requesting that instead of adjudging the value of the remaining interest of Plaintiff Reuben N. Pelot, III, in their dentistry partnership, that the case be remanded for the Trial Court to make that determination.

State of Tennessee vs. James Emmett Moses, Jr. a/k/a Ali Hakem Mahammed
W1999-01509-CCA-R3-CD
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge Joseph H. Walker, III

The appellant, James Emmett Moses, Jr., a/k/a Ali Hakem Mahammed, appeals the sentencing decision of the Lauderdale County Circuit Court following his guilty pleas to the offenses of one count aggravated burglary, two counts of robbery, and one count of theft under $500. Following a sentencing hearing, the trial court imposed an effective sentence of twenty six years imprisonment.1 On appeal, the appellant challenges the length of the sentences and the imposition of consecutive sentences.

James A. Ayers also known as James Harris v. State of Tennessee
W1999-00612-CCA-R3-PC
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge John P. Colton, Jr.

The appellant, James A. Ayers also known as James Harris, appeals the order of the Shelby County Criminal Court summarily dismissing his petition for post-conviction relief. In this appeal, the appellant challenges the trial court’s summary dismissal of his petition as being time-barred. Specifically, he argues that his claim was later arising under Burford and Sands.

State of Tennessee v. Michael Thomason
W1999-02000-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Julian P. Guinn

The defendant, Michael Thomason, appeals as of right his conviction by a Haywood County Circuit Court jury of four counts of sexual battery, one count of aggravated sexual battery, and one count of contributing to the delinquency of a minor. The trial court sentenced the defendant as a Range I standard offender to two years on each of the sexual battery charges; ten years on the aggravated sexual battery charge; and eleven months and twenty-nine days on the misdemeanor count of contributing to the delinquency of a minor, the sentences to be served concurrently. The defendant presents the following issues for review:

Ray Gabrielle Cox v. Anderson County Highway Dept. and Anderson County, Tennessee - Concurring
E1999-01697-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge James B. Scott, Jr.

In this tort action, the defendants appeal from an award of compensatory damages capped by the trial court at $130,000 pursuant to the Governmental Tort Liability Act (“GTLA”). They also seek to reverse the trial court’s decision to assess them with discretionary costs of $3,440.98. We affirm all of the trial court’s judgment except the award of discretionary costs.

Ray Gabrielle Cox v. Anderson County Highway Dept. & Anderson County, Tennessee - Dissenting
E1999-01697-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge James B. Scott, Jr.

I dissent from the majority opinion affirming the judgment of the Trial Court awarding compensatory damages of $130,000. From my review of the record, Plaintiff did not meet her burden of proving that Defendant had notice of the condition of the roadway, and therefore I would reverse the judgment of the Trial Court.

Pamela Lannom v. Board of Education for the Metropolitan Government of Nashville and Davidson County
M1999-00137-COA-R3-CV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: Chancellor Carol L. McCoy

The Davidson County Board of Education conducted a termination hearing for a tenured teacher who had been caught on videotape stealing pills from a student’s prescription bottle. After the hearing, the teacher was dismissed -2- from her position. She subsequently filed a Petition for Writ of Certiorari, which was dismissed after a Chancery Court hearing. We affirm the Chancery Court.

Virginia A. Parker, v. First American Corporation
M2000-00456-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Judge Thomas Goodall

This appeal involves the jury’s assessment of damages arising out of a premises liability case. Finding the plaintiff to be 49% at fault and the defendant to be 51% at fault, the jury awarded to the plaintiff 51% of the damages that it had assessed. On appeal, the plaintiff argues that the jury’s damage award is not supported by material evidence in that it does not include damages for pain, suffering and loss of enjoyment of life. We agree with the plaintiff. Therefore, we reverse the jury’s award as to damages and remand this case for a new trial only on the issue of damages.

Robert Glen Coe v. State of Tennessee
M1999-01313-SC-DPE-PD
Authoring Judge: Justice Adolpho A. Birch, Jr.

In Heck van Tran v. State,1 a majority of this Court established the protocol that an inmate sentenced to death must follow to assert a common law and constitutional challenge to his or her competence to be executed. In the context of a Separate Concurring and Dissenting Opinion, I identified three components of the protocol which, when implemented, would each produce an unconstitutional result. Two are most significant: (1) use of the protocol would permit the execution of inmates who are, due to mental defect or disease, unable to consult with and assist their counsel; and (2) use of the protocol would deprive inmates of the right to have the ultimate issue–-competence to be executed-- determined by a jury of their peers.

Clarice C. White v. Mary Jo Dozier and the Montgomery County Election Commission, et al.
M1999-02386-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Chancellor Carol A. Catalano

This is an appeal by the contestant in an election contest brought pursuant to Tennessee Code Annotated sections 2-17-101 to 2-17-116. The trial court dismissed the complaint specifically holding that the mandate of section 17-106, that trial of an election contest “be held no more than fifty days from the date the complaint was filed,” was jurisdictional such that after the expiration of this fifty-day period, the trial court lost jurisdiction.

Steven DeWayne Bolden v. State of Tennessee
W1999-00029-CCA-R3-PC
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge R. Lee Moore Jr.

The petitioner, Steven DeWayne Bolden, appeals the dismissal of his petition for post-conviction relief by the Lake County Circuit Court on March 26, 1999. Following a review of the record and the parties’ briefs, we affirm the judgment of the post-conviction court.

State of Tennessee v. Patricia Spencer
W1999-00030-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Jon Kerry Blackwood

On December 11, 1998, the defendant, Patricia Spencer, pled guilty to one count of second degree murder and one count of attempted especially aggravated robbery. The trial court sentenced her as a Range I Violent Offender to 25 years for the second degree murder and as a Range I Standard Offender to 8 years for the attempted especially aggravated robbery, the sentences to be served concurrently. From this sentencing, the defendant now appeals asserting that the trial court erred in its 25-year sentence for the second degree murder; accordingly, she requests that her sentence be reduced. After careful review, we AFFIRM the sentence as imposed by the trial court.

State of Tennessee v. Tim D. Smith
W1999-00039-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Chris B. Craft

Defendant, Tim D. Smith, was found guilty by a Shelby County jury of automobile burglary, a Class E felony, and was sentenced by the trial court to six years as a career offender. The sole issue in this appeal as of right is whether the evidence is sufficient to support the guilty verdict. After a careful review of the record, we conclude the evidence is indeed sufficient to support the verdict.  Accordingly, the judgment of the trial court is affirmed.

State of Tennessee v. Marco Boyd
W1999-00046-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Arthur T. Bennett

The defendant, Marco Boyd, pled guilty to two counts of reckless endangerment, Class E felonies. In his negotiated plea, he agreed to a fine of $500 on each count and two one-year concurrent sentences. The manner of service of the sentences was reserved for a later hearing. At the hearing, the trial court denied the defendant probation, and from that decision the defendant now appeals. After careful review, we AFFIRM the judgment from the trial court.

State of Tennessee v. William Padilla
W1999-00009-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Bobby H. Capers

The defendant, William Padilla, appeals from his Haywood County jury conviction of one count of rape of a child. The defendant received 25 years, the maximum sentence for a Range I standard offender. He appeals this conviction and sentence, arguing that:

(1) The evidence was insufficient to support the jury’s verdict; and

(2) the sentence was excessive.

After careful review, we AFFIRM the judgment and sentence from the trial court

Carlous Coman v. State of Tennessee
W1999-01074-CCA-R3-PC
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Roy B. Morgan, Jr.

The petitioner, Carlous Coman, appeals from the Madison County Circuit Court’s order denying his petition for post-conviction relief. On April 19, 1997, the petitioner was convicted by a Madison County jury of second degree murder. For this offense, the defendant, a Range I offender, was sentenced to twenty years in the Department of Correction. On February 17, 1999, he filed a post-conviction petition alleging ineffective assistance of counsel at trial and upon appeal. The trial court denied this petition after a hearing. After careful review, we AFFIRM the order of the trial court denying the petition.

State of Tennessee v. Christopher Walls
E1999-00617-CCA-R3-CD
Authoring Judge: Judge J. Curwood Witt, Jr.
Trial Court Judge: Judge E. Eugene Eblen

The defendant, Christopher Walls, appeals from the denial of his motion for reduction of sentence by the Criminal Court of Morgan County. The defendant pleaded guilty to escape, a Class E felony, Tenn. Code Ann. § 39-16-601 (1997), and theft of property valued over $1000, a Class D felony, Tenn. Code Ann. § 39-14-103 (1997). In accordance with his plea agreement, the trial court sentenced the defendant to serve his bargained-for sentence of three years in the Department of Correction. In his appeal, he complains that the trial court erred in failing to grant his motion to reduce his sentence. Following a review of the record and the briefs of the parties, we affirm the trial court's judgment.

Craig Stephen Portman v. Camelot Care Centers, Inc.
03S01-9901-CH-00007
Authoring Judge: H. David Cate, Special Judge
Trial Court Judge: Hon. Frank V. Williams, III,
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. The only issue for resolution is whether the trial court properly concluded that the injury to the eye of the plaintiff, Craig Stephen Portman, arose out of his employment with the defendant, Camelot Care Center, Inc. We agree with the trial court and affirm.1 The plaintiff Portman was an employee of the defendant on September 4, 1996, when he was involved in an incident, where a minor child spit in his eye. Three to five days later he experienced irritation in that eye. He sought medical treatment on the seventh day following the incident. Ultimately he came under the care of Dr. Subba Rao Gollamudi, an ophthalmologist who focuses on diseases and surgery of the cornea and anterior segment of the eye. Dr. Gollamudi noted the plaintiff related to him that he had normal ocular health prior to the onset of symptoms in the eye, which occurred coincident with the incident at work, and further testified as follows: Q. Doctor, if you assume Mr. Portman worked at the Camelot Care Center which was where he worked in the capacity as a counselor with children and that on the 4th day of September, 1996, a child spit in his eye, assume that's correct, and that he is then followed with the conditions that he described to you, are you able to form an opinion based upon a reasonable degree of medical certainty given the current level of scientific and medical research whether or not that episode at work was the causative factor in the development of the condition you ultimately diagnosed and treated? A. I would say that I feel reasonably certain that the time frame and episode as related to me are consistent with saliva that has herpes in it causing ocular surface herpes. The Plaintiff testified: Q. Prior to September of 1996, had you ever experienced any symptoms, problems, been treated for or been told you had the herpes simplex virus? A. No. There is no evidence the plaintiff's ocular simplex herpes condition was caused by any other occurrence. The standard of review of factual issues in workers' compensation cases is de novo upon the record of the trial court with a presumption of correctness, unless the preponderance of the evidence is otherwise. Tenn. Code Ann. _ 5-6-225(e)(2) (1991 of Supp. 1998). "In order to be eligible for workers' compensation benefits, an employee must suffer `an injury by accident arising out of and in the course of employment which causes either disablement or death.' Tenn. Code Ann. _ 5-6-12(a)(5). The phrase `arising out of' refers to causation. The causation requirement is satisfied if the injury 1W hile all th e issu es in this ca se w ere n ot co nclu ded, the p arties and the tria l cour t agre ed th at it should be treated as a final judgment pursuant to Tennessee Rules of Civil Procedure No. 54. 2

James Webb v. State of Tennessee
W1998-00047-CCA-R3-PC
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Dick Jerman, Jr.

The petitioner, James Webb, appeals as of right from the trial court’s order summarily dismissing his pro se petition for post-conviction relief without an evidentiary hearing. We REVERSE the judgment of the trial court and REMAND for appointment of counsel and review of petitioner’s claims.

State vs. Michael Gerard Coppola
W1999-01975-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Julian P. Guinn

On April 28, 1997, the appellant, Michael Gerard Coppola, pled guilty in the Benton County Circuit Court to an array of offenses. The plea agreement provided for an effective six-year sentence with the Tennessee Department of Correction (T.D.O.C.) and payment of $3,363.10 of restitution to various victims. In March 1998, appellant completed boot camp and T.D.O.C. released him to probation, the terms of which required payment of the previously ordered restitution. The sole issue on appeal is the trial court’s revocation of probation for failure to pay restitution. Based upon our conclusion that no probation violation occurred, we REVERSE and REMAND to the trial court.