Linda Sue Hathaway vs. Glenn Hathaway E2002-00659-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Bill Swann
The Trial Court ordered father to pay daughter's tuition to a college of her choice, based upon a provision in the Marriage Dissolution Agreement. On appeal, we modify.
Knox
Court of Appeals
Stan Ley M Oo Re v. Pay Less Ca Shway S, In C., E W2002-00705-SC-WCM-CV
Authoring Judge: Joe H. Walker III , Sp. J.
Trial Court Judge: Rita L. Stotts, Judge
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated _ 5-6-225(e)(3) for hearing and reporting of findings of fact and conclusions of law. The employee appeals the trial court dismissal of his claims by granting summary judgment in favor of employer, holding the action was barred by the statute of limitations. We reverse and remand. Tenn. Code Ann. _ 5-6-225(e) Appeal as of Right; Judgment of the Trial Court Reversed and Remanded. JOE H. WALKER III , SP. J., in which JANICE M. HOLDER, J, and JOE C. LOSER, SP. J. joined. Steve Taylor, Memphis, TN, for the Appellant, Stanley Moore. Lori D. Parrish, Memphis, TN, for the Appellees, Payless Cashways, Inc., et al. MEMORANDUM OPINION Stanley Moore worked for Payless Cashways. During the course of his employment, on June 23, 1999, lumber accidentally fell on Mr. Moore. He was transported to the emergency room and treated by Dr. Bobo. He was paid temporary total benefits until released to return to work in September, 1999. He was followed by Dr. Bobo and Dr. Chen for reflex sympathetic dystrophy until released February 1, 2. The last payment for medical treatment was made March 29, 2, for treatment received February 1, 2. Dr. Bobo was of the opinion that he had no permanent partial impairment. Mr. Moore had obtained counsel at some point, who notified Mr. Moore in April 2, that medical records indicated Mr. Moore had no permanent partial impairment, and the attorney was closing his file, that Mr. Moore could consult with another attorney. Mr. Moore continued to have problems with his left upper and lower extremities. He obtained new counsel and a complaint was filed April 3, 21. Dr. Rizk evaluated the claimant and opined by letter dated June 11, 21, that Mr. Moore has reflex sympathetic dystrophy which Dr. Rizk considers to be a permanent condition, and caused by his work-related accident. Summary judgment was granted for the employer on the ground that the suit is barred by the statute of limitations found at T.C.A. _ 5-6-23, and 224. I. Rule 56.4 provides that summary judgment is appropriate where: (1) there is no genuine issue with regard to the material facts relevant to the claim or defense contained in the motion, and (2) the moving party is entitled to judgment as a matter of law on the undisputed facts. See Staples v. CBL & Associates, Inc., 15 S.W.3d 83, 88 (Tenn. 2); Bain v. Wells, 936 S.W.2d 618, 622 (Tenn. 1997). "Courts must view the evidence in the light most favorable to the nonmoving party and must also draw all reasonable inferences in the nonmoving party's favor." Staples, 15 S.W.3d at 89. "Courts should grant a summary judgment only when both the facts and the inferences to be drawn from the facts permit a reasonable person to reach only one conclusion." Id. The trial court denied the motion for summary judgment by order entered July 3, 21, stating: "It is the opinion of this Court that Defendants' Motion is not well- founded and should be and is hereby denied." Defendants filed for permission to appeal or for reconsideration. On March 5, 22, the trial court entered an order granting relief from the prior order, granting summary judgment in favor of the defendants and dismissing the complaint. The trial court made no findings of fact, thus the appeal comes with no presumption of correctness. The panel finds that summary judgment was not appropriate in this case. II. A complaint for workers' compensation benefits must be filed within one year after the accident resulting in injury, T.C.A. _ 5-6-23; or within one year after the occurrence of injury, T.C.A. _ 5-6-224. It is well-settled that "the running of the statute of limitations is suspended until by reasonable care and diligence it is discoverable and apparent that an injury compensable under the workmen's compensation laws has been sustained." Livingston v. Shelby Williams Indus., Inc., 811 S.W.2d 511 (Tenn. 1991). It is the date on which the disability manifests itself to a person of reasonable diligence, not the date of the accident which triggers the running of the statute of limitations. Jones v. Home Indem. Ins. Co., 679 S.W.2d 445, 446 (Tenn. 1984). Ordinarily, the limitation period should not begin to run until a physician presents claimant with a diagnosis of his condition. Poore v. Magnavox Co., 666 S.W.2d 48 (Tenn. 1984).
Moore
Workers Compensation Panel
Donna Harlow v. Reliance National, M2001-02336-WC-R3-CV
Authoring Judge: James L. Weatherford, Sr.J.
Trial Court Judge: Russ Heldman, Judge
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with the Tennessee Code Annotated _ 5-6- 225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. Almost three years prior to his death from injuries sustained in a work accident, the employee and his ex-wife (the plaintiff), had taken part in a "remarriage" ceremony at a church but failed to obtain a marriage license. The trial court found that the plaintiff, was the "lawful wife" of the deceased worker and awarded death benefits. Additionally, upon motion by the plaintiff, the trial court commuted the award to lump sum. We reverse the trial court and remand for dismissal because we find that the plaintiff was not the surviving spouse of the deceased. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Circuit Court Reversed. JAMES L. WEATHERFORD, SR.J., in which JANICE M. HOLDER, J. and JOE C. LOSER, SP.J., joined. Jill A. Hanson, Nashville, Tennessee, for the appellants, Reliance National and All Pro Painting. Joseph D. Baugh, Franklin, Tennessee, for the appellee, Donna Harlow. MEMORANDUM OPINION Gary Harlow and Donna Barber were married in 1973 and divorced in 1994. In 1995, the Harlows reinitiated their relationship, and Mr. Harlow moved into Ms. Harlow's home. In April 1997, the Harlows participated in a "remarriage" ceremony at a church in which marriage vows were exchanged under the direction of a minister. However, no marriage license was obtained at that time nor thereafter. The Harlows lived together until Mr. Harlow's death. In 1998, the Harlows met with a tax preparer who advised them that they could not file a joint tax return without a marriage license. Until the notification by the tax preparer, Ms. Harlow was unaware that no marriage license existed. After meeting with the tax preparer, Ms. Harlow asked Mr. Harlow several times about obtaining a marriage license, and Mr. Harlow responded that "it was not important" or "you worry about silly things." Ms. Harlow took no affirmative action to obtain the license beyond her questioning of Mr. Harlow. The Harlows filed separate tax returns as "single" or "head of household" for the tax years of 1997, 1998 and 1999. Despite filing separate tax returns, the Harlows filed other documents, including a loan application, indicating their status as husband and wife. Mr. Harlow was sporadically employed during the "remarriage" period, and Ms. Harlow served as the primary breadwinner. On January 11, 2, Gary Harlow, an employee of All Pro Painting, sustained severe head injuries after falling from a work platform, and five days later Mr. Harlow died from those injuries. After Reliance National, the workers' compensation insurer for All Pro Painting, denied death benefits to Ms. Harlow as a surviving spouse, Ms. Harlow filed this action against All Pro Painting and Reliance National ("defendants") seeking payment of statutory death benefits under the Tennessee Workers' Compensation Law. The trial court granted Ms. Harlow's motion for summary judgment and awarded death benefits, finding that she was the "lawful wife" of Mr. Harlow because a "solemnized" relationship existed between the Harlows. The trial court also found that Ms. Harlow was an actual dependent of the deceased and that it would violate Tennessee public policy as set forth in Tennessee Code Annotated _ 36-3-113 to declare that the Harlows' "solemnized" relationship was not a marriage. Upon a motion by Ms. Harlow, the trial judge commuted the award to a lump sum. ANALYSIS Review of findings of fact by 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. Tenn. Code Ann. _ 5-6-225(e)(2); Stone v. City of McMinnville, 896 S.W.2d 548, 55 (Tenn. 1995). Conclusions of law are reviewed de novo without any presumption of correctness. Ivey v. Trans Global Gas & Oil, 3 S.W.3d 441, 446 (Tenn. 1999). The workers' compensation statutes are to be given an equitable and liberal construction in favor of workers and their dependents. Tenn. Code Ann. _ 5-6-116; Sullivan Electric Co. v. McDonald, 541 S.W.2d 112, 115 (Tenn. 1976). I. Whether Ms. Harlow is the surviving spouse of Mr. Harlow. Tennessee Code Annotated _ 5-6-21(a) provides: For the purposes of the Workers' Compensation Law, the following described persons shall be conclusively presumed to be wholly dependent: -2-
A Williamson County jury convicted the defendants of DUI, first offense. Defendant Daniel was sentenced to eleven months and twenty-nine days, all suspended except for 90 days incarceration. Defendant Echols' eleven-month and twenty-nine day sentence was suspended after 30 days incarceration. The sole issue on appeal is whether their sentences are excessive. We find the defendants failed to file their notices of appeal within 30 days of the trial court's orders overruling their motions for new trial; therefore, their appeal is dismissed.
Pursuant to Tennessee Supreme Court Rule 23, we accepted certification of a question of law from the United States District Court for the Middle District of Tennessee concerning regulations issued by the Tennessee Department of Human Services. The certified question from the district court asks us to determine whether the rationale of statutorily imposed vicarious liability under Gleaves v. Checker Cab Transit Corp., 15 S.W.3d 799 (Tenn. 2000), applies to rules governing licensing and operation of day care centers in Tennessee. For the reasons given herein, we answer that our holding in Gleaves is distinguishable from the present case, and the Tennessee regulations governing day care centers do not, absent fault on the part of the licensee, provide for vicarious liability for the injurious acts of an employee occurring outside the scope of employment.
The Appellants, Lloyd E. Ferrell and Debra L. Ferrell, appeal the denial of post-conviction relief by the Hardin County Circuit Court. On appeal, both contend that the post-conviction court erred by not finding ineffective assistance of counsel. In addition, Debra Ferrell asserts: (1) that she should be granted a new trial because the State failed to provide Brady/Bagley material: (2) that the postconviction court erred by not making written findings of fact on each issue raised in the petition, and (3) that the cumulative effect of all errors at trial, in addition to counsel’s ineffectiveness, deprived her of a meaningful defense. After review, we affirm the dismissal of the petitions.
Hardin
Court of Criminal Appeals
State of Tennessee v. Carla Moten W2001-01922-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Arthur T. Bennett
Defendant, Carla Moten, was indicted by the Shelby County Grand Jury for aggravated burglary and intentional aggravated assault. Defendant was convicted by a jury of the lesser-included offense of reckless aggravated assault. The jury also found Defendant guilty of aggravated criminal trespass as a lesser-included offense of aggravated burglary. Defendant was sentenced to two years for her reckless aggravated assault conviction and six months for her aggravated criminal trespass conviction, to be served concurrently. In her appeal as of right, Defendant argues that the evidence at trial was insufficient to support her conviction for reckless aggravated assault. We disagree, and affirm the judgment of the trial court regarding the conviction for reckless aggravated assault. However, we find plain error in the conviction for aggravated criminal trespass as a lesser-included offense of aggravated burglary and therefore reverse and dismiss the conviction for aggravated criminal trespass.
Shelby
Court of Criminal Appeals
State of Tennessee v. Danial R. Willcutt W2001-02743-CCA-R3-CD
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge C. Creed McGinley
A Hardin County jury convicted the defendant, Danial R. Willcutt,1 of aggravated sexual battery, a Class B felony. The defendant was sentenced as a Range I violent offender to twelve years in the Department of Correction. In this appeal as of right, the defendant raises the following issues: (1) whether the evidence was sufficient to support his conviction for aggravated sexual battery; and (2) whether his maximum Range I sentence is excessive. Upon review of the record, we affirm the judgment of the trial court.
Hardin
Court of Criminal Appeals
State of Tennessee v. Danial R. Willcutt - Concurring W2001-02743-CCA-R3-CD
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Judge C. Creed McGinley
I write separately to express my concern over the continuing problem we see in appellate records where the record fails to explain witness demonstrations. Nevertheless, I find the evidence in this case sufficient to support the verdict regardless of this shortcoming. Thus, I do not reach the issue of which party has the burden of proof with regard to witness demonstrations.
Hardin
Court of Criminal Appeals
State of Tennessee v. Keith Goodman E2001-00036-SC-R11-CD
Authoring Judge: Justice Frank F. Drowota, III
Trial Court Judge: Judge James B. Scott, Jr.
The threshold issue presented in this appeal is whether the Court of Criminal Appeals erred in holding that the defendant’s motion to dismiss was not capable of pretrial determination under Tennessee Rule of Criminal Procedure 12(b) because it requires a determination of the general issue of the defendant’s guilt or innocence. In our view, the defendant’s motion presents a legal question – the proper interpretation of a statute – and does not require a determination of the defendant’s guilt or innocence. Having decided the threshold issue, we also are of the opinion that the trial court correctly interpreted the statute when it held that a parent is not subject to prosecution for especially aggravated kidnapping under Tennessee Code Annotated section 39-13-305(a)(2) when the indictment fails to allege that the minor child was removed or confined by force, threat, or fraud. Therefore, the judgment of the Court of Criminal Appeals is reversed. The judgment of the trial court granting the defendant’s pretrial motion to dismiss count one of the indictment is reinstated.
Anderson
Supreme Court
Charles Montague vs. Michael Kellum E2002-01733-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Jean A. Stanley
This legal malpractice claim arises from the filing by attorney Michael D. Kellum ("Defendant") of an unverified post-conviction petition on behalf of Charles Montague ("Plaintiff"). The post-conviction petition was dismissed by the Criminal Court on the merits and because it was not verified. We vacated a previous grant of summary judgment to Defendant to allow Plaintiff time to conduct discovery. While on remand and during discovery, the Court of Criminal Appeals affirmed the dismissal of Plaintiff's post-conviction proceeding for the sole reason that the petition was unverified. Thereafter, the Trial Court again dismissed this lawsuit after concluding, inter alia, Plaintiff had suffered no damages. We vacate and remand.
The defendant pled guilty to one count of Class D felony theft over $10,000, received an agreed three-year sentence, and agreed to allow the trial court to determine the manner in which her sentence would be served. The trial court ordered the sentence to be served in incarceration. In this appeal, the defendant argues the trial court erred in denying alternative sentencing. We affirm the judgment of the trial court.
Cocke
Court of Criminal Appeals
Debra Persada vs. Tim Persada E2002-00397-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: G. Richard Johnson
In divorce action the parties reached an agreed property settlement by mediation. Before Judgment, the husband repudiated the agreement, but the Trial Court heard evidence on the validity of the agreement and enforced the agreement by entering Judgment thereon. We affirm on appeal.
A Davidson County jury convicted the defendant, Anthony R. Parham, of sexual battery. In this appeal as of right, the defendant raises the issue of whether the evidence was sufficient to support the conviction for sexual battery. We affirm the judgment of the trial court.
The petitioner appeals the denial of his post-conviction relief petition. He argues: (1) his trial counsel was ineffective in advising him regarding the sentence agreement in which he waived his right to appeal; and (2) he did not knowingly and voluntarily waive his right to appeal. We conclude that although the post-conviction court erroneously stated that the uncorroborated testimony of the post-conviction petitioner "should be summarily struck," the post-conviction court, nevertheless, made proper and adequate findings which support the denial of relief. We affirm the judgment of the post-conviction court.
The Defendant, John Parker Roe, was convicted by a jury of first degree premeditated murder. His conviction was affirmed on direct appeal. See State v. John Parker Roe, No. 02C01-9702-CR-00054, 1998 Tenn. Crim. App. LEXIS 39 (Jackson, Jan. 12, 1998), perm. appeal denied (Tenn., Jan. 4, 1999). The Defendant subsequently filed for post-conviction relief, alleging that he received ineffective assistance of counsel at trial. After an evidentiary hearing, the post-conviction court denied relief. This appeal followed. We affirm.
Shelby
Court of Criminal Appeals
Kay Dulin vs. Michael Dulin W2001-02969-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: George H. Brown
This appeal arises from a custody dispute involving parental relocation with a minor child. The lower court dismissed Father's petition to oppose Mother's relocation and granted Mother's motion to dismiss. Father raises multiple issues on appeal. For the following reasons, we affirm.
Shelby
Court of Appeals
State of Tennessee v. Michael Tucker - Concurring W2000-02220-CCA-R3-CD
Authoring Judge: Presiding Judge Gary R. Wade
Trial Court Judge: Judge Chris B. Craft
I agree with the results reached in the lead opinion authored by Judge Wedemeyer. I write separately, however, because I believe that the dissent places too much emphasis on the supplemental instruction defining “adequate provocation” rather than the context of the entire charge to the jury. Here, the trial court instructed the jury, in pertinent part, as follows: “that the killing resulted from a state of passion produced by adequate provocation sufficient to lead a reasonable person to act in an irrational manner.” When the jury asked for a definition of “adequate provocation,” the trial court abbreviated a definition of provocation which was contained in Black’s Law Dictionary, 4th Edition, and charged the jury that “adequate provocation is one that excites such anger as might obscure the reason or dominate the volition of an ordinary reasonable man.” In context, I do not view the instructions, even with the supplement, so narrowly as to so limit passion as being produced only by anger. This court has previously held that the term passion does not require definition because it is commonly used and “can be understood by people of ordinary intelligence.” State v. Mann, 959 S.W.2d 503, app. at 522 (Tenn. 1997) (quoting State v. Raines, 882 S.W.2d 376, 383 (Tenn. Crim. App. 1994)). I would not classify the charge “review[ed] in its entirety and read . . . as a whole” as erroneous and join in the affirmance of the conviction. See State v. Hodges, 944 S.W.2d 346, 352 (Tenn. 1997).
I respectfully dissent from the majority opinion. I believe the trial court erred by limiting the definition of passion to anger relative to the adequate provocation necessary for voluntary manslaughter.
A Shelby County jury found the Defendant guilty of especially aggravated robbery and felony murder in the perpetration of a robbery. The trial court sentenced the Defendant as a Range I violent offender to life imprisonment for the felony murder conviction and to twenty-two years for the especially aggravated robbery conviction. On appeal, the Defendant argues that the trial court erred by failing to give a requested jury instruction on lost or destroyed evidence, that the evidence presented by an accomplice was not sufficiently corroborated to support the convictions, and that the trial court erred in sentencing the Defendant for the especially aggravated robbery conviction by not including in the record specific findings regarding the enhancement and mitigating factors considered in sentencing him. We affirm the Defendant's convictions, but remand to the trial court for a new sentencing hearing for the especially aggravated robbery conviction.
The defendant, Derek T. Payne, was convicted by a Shelby County Criminal Court jury of second degree murder, a Class A felony, and attempted especially aggravated robbery, a Class B felony, and was sentenced by the trial court to an effective sentence of thirty-seven years in the Department of Correction. In this appeal as of right, he challenges the sufficiency of the evidence in support of his convictions, the sentences imposed, and the trial court's evidentiary rulings. We affirm the judgments of the trial court.
Shelby
Court of Criminal Appeals
State of Tennessee v. Michael Tucker W2000-02220-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Chris B. Craft
The Shelby County Grand Jury indicted the Defendant for felony murder in the perpetration of a robbery, first degree premeditated murder, and especially aggravated robbery. Following a trial, at which the Defendant was tried with his co-defendant, a Shelby County jury convicted the Defendant of second degree murder. The Defendant now appeals his conviction as of right, arguing that insufficient evidence was presented to support his conviction, that the trial court supplied the jury with improper supplemental instructions, and that the trial court improperly commented on the evidence at trial. Concluding that sufficient evidence was presented to support the Defendant’s conviction for second degree murder, that the trial court’s supplemental instructions to the jury were proper, and that the trial court did not improperly comment on the evidence, we affirm the judgment of the trial court.
Shelby
Court of Criminal Appeals
John Ruff vs. Raleigh Assembly W2001-02578-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Robert A. Lanier
This appeal arises from a complaint filed by the plaintiff, John Ruff ("Mr. Ruff"), in the Circuit Court at Shelby County against the defendant, Raleigh Assembly of God Church, Inc. ("the church"), for assault, battery, false imprisonment and intentional infliction of emotional distress. At the conclusion of the trial, the trial court entered judgment in favor of the church. The parties raise multiple issues on appeal. For the following reasons, we affirm in part and remand
Shelby
Court of Appeals
Andrew Downs vs. Crystal Bailey/Joni Downs W2002-01362-COA-R3-JV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: William A. Peeler
This is a child custody case. The two children involved were born to the mother and father during their marriage. In 1998, the mother and father were unable to care properly for the children, so the mother's sister (the children's aunt) obtained temporary custody. The mother and father divorced in 1999. In 2000, the father filed a petition for custody, claiming that he and his common-law wife could provide a stable home for the children. The aunt sought to retain custody. The mother intervened, arguing that, if permanent custody were not granted to the aunt, then custody should be awarded to her. After a hearing, the trial court granted custody to the father. The mother and the aunt appeal, both claiming that they are entitled to custody. We affirm, finding that the father's rights are superior to those of the aunt, and that the trial court did not err awarding custody to the father rather than the mother.
Tipton
Court of Appeals
Deborah Smith vs. Riley Smith W2002-00477-COA-R3-CV
Authoring Judge: Judge W. Frank Crawford
Trial Court Judge: George R. Ellis
This is an appeal of a final decree of divorce and the order of the trial court on the moton to alter or amend, involving issues of division of marital property, alimony in futuro, contempt of court, and injunctive relief for Wife's alleged harassment of Husband. Husband appeals. We affirm in part, reverse in part, and remand.
