Michael Edmondson v. State of Tennessee
W2002-00270-CCA-R3-PC
Authoring Judge: Judge Joseph M. Tipton
Trial Court Judge: Judge Joseph B. Dailey

The petitioner, Michael Edmondson, appeals as of right the Shelby County Criminal Court's denial of his petition for post-conviction relief. He challenges his convictions pursuant to guilty pleas contending that he received the ineffective assistance of counsel because his trial attorney failed to investigate and prepare his case for trial. We affirm the trial court's denial of the post-conviction petition.

Alton Dixon v. Nike, Inc.
CH-00-2232-2
Trial Court Judge: Floyd Peete, Jr.

Larry Thrasher v. Carrier Corporation,
M2001-02680-WC-R3-CV
Authoring Judge: William H. Inman, Sr. J.
Trial Court Judge: L. Craig Johnson, 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. The plaintiff suffers from plantar fasciitis in both feet. Causation was vigorously contested. The trial judge found that the plaintiff's condition was job-related. A podiatrist opined that the plaintiff retained a 29 percent impairment to both feet. The trial judge "assessed a permanent, partial disability of 1 percent to the two feet of the plaintiff," notwithstanding that the plaintiff had returned to his pre- injury job, "substantially improved," and in his words, "doing good," with no complaints other than first-step pain upon arising. The finding of 1 percent is excessive and is reduced to 4 percent. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Chancery Court Affirmed as Modified WILLIAM H. INMAN, SR. J., in which ADOLPHO A. BIRCH, JR., J., and JOE C. LOSER, SP. J., joined. B. Timothy Pirtle, McMinnville, Tennessee, for the appellants, Carrier Corporation and Insurance Company of the State of Pennsylvania. Donald J. Ray, Tullahoma, Tennessee, for the appellee, Larry Thrasher. MEMORANDUM OPINION The Pleadings The plaintiff alleged that he had worked for the Carrier Corporation for thirty years and that "his work required him to stand on his feet for long periods of time, as a result the plaintiff has developed bilateral plantar fasciitis." No other condition is alleged. The defendant denied that the plaintiff's condition was job-related, but was a non- compensable, pre-existing condition. Plaintiff's Testimony The plaintiff testified that he had worked for the Carrier Corporation for thirty-two years in "coil production and press expander setup and operation and coil utility work." Beginning in 1994, he was assigned to a job which required him to stand on a three-inch piece of channel iron while loading and unloading carts of materials, stepping off and on the channel iron onto the concrete floor repetitively. His feet began hurting "five or six years ago,"1 and he consulted his family physician, Dr. Brandon, about the problem. He next reported his foot-problems to the company nurse, who furnished him a list of physicians. He selected Dr. Arms, an orthopedic surgeon, who prescribed medication and physical therapy. He saw Dr. Brandon again, who referred him to Dr. Fred Marino, Jr., a podiatrist.2 Dr. Marino prescribed orthotics, and "took me off work, put my right foot in a cast, and wanted me to rest and take it easy for a while." After nineteen (19) weeks off, the plaintiff returned to work. His testimony is markedly significant: A: I do good, I still have some pain when I get up of a morning first thing, but I do real good . . . If I have to change shoes, I have to change the inserts out and put them in the other shoes. Q: Are you wearing those inserts even today? A: Yes, sir. Q: What about weekends, do you do things, work in the garden, mow the grass, do things of that nature? A: Yes, sir. . . . . . 1 The case was heard May 21, 21. 2 In the interim, the plaintiff was seen by Dr. Robert Bell, another podiatrist, in 1998 and 1999, who took an extensive history fro m the p laintiff, and tre ated h im for dia gnos ed p lantar fasc iitis. Thes e visits to D r. Be ll, his diagnosis, and his treatm ents, were not disclosed by the plain tiff to anyone, including the physicians who subsequently treated or examined him. Moreo ver, the plaintiff did not disclose the fact during discovery procedures. At the trial, he testified that he d id not re call "going to Dr. Bell, or being examined by Dr. Bell, or having his feet x-rayed by Dr. Bell, or giving him this long h istory." T he pla intiff's last visit to Dr. Bell occurred five (5) months before he reported his foot-problems to his emp loyer. Th is extrao rdina ry testimo ny was n ot, for w hateve r reaso n, exp lored in dep th and the trial jud ge did not allud e to it. -2-

Cynthia L. Ursery v. Liberty Mutual Insurance Group,
M2001-02749-WC-R3-CV
Authoring Judge: James L. Weatherford, Sr. J.
Trial Court Judge: Thomas W. Brothers, Judge
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel in accordance with Tennessee Code Annotated _ 5-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. In this case, the employer appeals the trial court's award of 8% permanent partial disability to the employee where 1) the medical proof established a 5% anatomical impairment to both elbows; and 2) a vocational expert gave the employee a 9% vocational disability rating based on loss of access to 9.4% of the jobs available to her prior to her injury due to her permanent medical restrictions. We find that the evidence does not preponderate against the trial court's findings, and therefore the award is not excessive. We affirm the judgment of the trial court in all respects. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Circuit Court Affirmed. JAMES L. WEATHERFORD, SR. J., in which JANICE HOLDER, J., and JOE C. LOSER, JR., SP. J., joined. David T. Hooper, Brentwood, Tennessee, for the appellants, Liberty Mutual Insurance Group and United Parcel Service, Inc. H. Tom Kittrell, Jr., Nashville, Tennessee, for the appellee, Cynthia Ursery. MEMORANDUM OPINION Mrs. Cynthia Ursery, the employee-appellee, was 46 years old at the time of trial. She graduated from high school in 1972 and has had no further educational training. From 1979 until April of 21, Mrs. Ursery worked for United Parcel Service (UPS), the employer-appellant, on a part-time basis. For a number of years she "bagged" small packages by pulling, pushing, or lifting the packages into bags and in turn putting the bags onto a conveyor belt. These packages were supposed to be limited to 1 pounds but at times exceeded 2 pounds in weight. Mrs. Ursery estimated she sorted 2, to 4, packages a night. For at least 1 years of her employment with UPS, she sorted individual small packages. In this job she was required to pick up the package and move her palms into an upright position continuously to read the label on the packages to place them in the correct bin. Other job duties she performed at UPS included loading and fueling trucks, and driving local routes. From 1988 to 1992, Mrs. Ursery also worked at Castner Knotts as a sales clerk where her job duties included unpacking clothes and hanging the items on display racks. In June of 1998, Mrs. Ursery saw Dr. Robert Russell because she had been experiencing pain in her left elbow. Dr. Russell prescribed medicine and gave her an "arm bandit." She returned to Dr. Russell in the fall of 1998 complaining of right elbow pain for which he also prescribed an "arm bandit." In January of 1999, she received two cortisone shots which only seemed to increase the pain in her elbows. Mrs. Ursery sought additional medical care and chose Dr. Jane Siegel from a panel presented to her by UPS. Dr. Siegel took Mrs. Ursery off work for about 5 or 6 weeks. Though her elbows improved with rest, as soon as she returned to work, her pain resurfaced. Dr. Siegel diagnosed chronic medial epicondylitis and performed surgery on Mrs. Ursery's right elbow in May of 1999. Mrs. Ursery returned to work with restrictions. UPS assigned her to a light duty job fueling trucks and driving them short distances across the yard. Mrs. Ursery began to have trouble pulling herself into the trucks and eventually re-injured her right elbow in May of 2. She was put on medical leave until September of 2, when she returned to work sorting light- weight letters. Mrs. Ursery's elbow pain continued. Consequently, Dr. Siegel placed her on permanent restrictions of lifting no more than 5 pounds and of making no highly repetitive motion of her wrist for more than 1 hour at a time. Dr. Siegel found that Mrs. Ursery had reached maximum medical improvement on April 2, 21, and assigned a 5% anatomical impairment rating to both elbows. In April of 21, UPS terminated Mrs. Ursery's employment because it had no work available that she could perform within her medical restrictions. She was earning $2. per hour at the time of her termination. Ms. Rebecca Williams, a Certified Vocational Evaluation Specialist, testified at trial on behalf of Mrs. Ursery. As part of a vocational evaluation performed in August of 21, Ms. Williams interviewed Mrs. Ursery for over 3 hours, administered the Wide Range Achievement Test -2-

Gary Eugene Aldridge v. State of Tennessee
M2001-02452-CCA-R3-PC
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Timothy L. Easter

The petitioner, Gary Eugene Aldridge, was convicted by a jury in the Circuit Court of Hickman County of one count of aggravated kidnapping, two counts of aggravated rape, one count of rape, and two counts of simple assault. The trial court sentenced the petitioner to an effective sentence of sixty years incarceration in the Tennessee Department of Correction, followed by an effective consecutive sentence of seventeen months and twenty-nine days in the local workhouse. After an unsuccessful appeal of his convictions, the petitioner timely filed a petition for post-conviction relief, alleging, among other grounds, ineffective assistance of counsel. The petitioner now brings this appeal challenging the post-conviction court's denial of his petition. After reviewing the record and the parties' briefs, we affirm the judgment of the post-conviction court.

John Iovinelli vs. Steadman Estes
W2001-02968-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: D'Army Bailey
This is an appeal of the grant of summary judgment. The Appellants contend that the trial judge granted the Appellees summary judgment, sua sponte, and that they did not have notice or an opportunity to respond to the issues decided by the judge. We disagree and, for the following reasons, we affirm.

Janice Evans vs. Thomas Evans
W2001-03037-COA-R3-CV
Authoring Judge: Judge W. Frank Crawford
Trial Court Judge: Joe C. Morris
This is an appeal of a final decree of divorce involving issues of division of marital property, rehabilitative alimony, child support, and admission of evidence. Wife appeals. We affirm in part, reverse in part, and remand.

State of Tennessee v. Lillie Fran Ferguson
W2002-00638-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Roger A. Page

After entering a guilty plea, the defendant reserved certified questions for review: (1) whether the Terry search was justified, and (2) whether the incriminating nature of the contraband was immediately apparent. We hold that the officer lacked reasonable suspicion to justify a Terry frisk and that the object felt was not immediately apparent as contraband. We reverse and dismiss the defendant's conviction.

Wesley A. Clayton, Andrew v. Sellers, Jackson, For Defendants-Appellees, Joseph Scott Wadley
W2002-01994-COA-R3-CV
Authoring Judge: Judge W. Frank Crawford
Trial Court Judge: Donald H. Allen

Stella Keltner vs. Open Lake Sporting Club
W2002-00449-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Jon Kerry Blackwood
This is a dispute over ownership of the Right Hand Arm portion of Open Lake. The trial court awarded summary judgment to Open Lake Sporting Club. Having determined that there are genuine issues of material facts, we reverse and remand for further proceedings.

State of Tennessee v. Calvin T. Barham
W2002-00246-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Roger A. Page

Defendant pled guilty to possession of cocaine with intent to sell, a Class C felony. Defendant's motion to suppress evidence was denied by the trial court. Defendant claimed that evidence found on him was the result of an illegal search and should have been suppressed. The suppression issue was certified for review. We affirm the trial court and hold the evidence was properly admissible.

Dept. of Transportation vs. Sammy/Yvonne Hanna
W2002-00152-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: C. Creed Mcginley
This is a condemnation case. The Tennessee Department of Transportation alleges that the trial judge committed error by allowing the landowners to discover the opinions of an appraiser not designated to testify at trial and that these errors require overturning the jury's verdict because of the prejudice they caused. We find that errors were committed in the court below, but that these errors were harmless. Therefore, we affirm the verdict of the jury.

Ronald Crafton v. John Van Den Bosch, Jr.
W2002-00679-COA-R9-CV
Authoring Judge: Judge W. Frank Crawford
Trial Court Judge: Donald H. Allen

Hal Gerber v. Virginia Starr Segal
CH-00-0893-2
Trial Court Judge: Floyd Peete, Jr.

Hal Gerber v. Virginia Starr Segal
CH-00-0893-2
Trial Court Judge: Floyd Peete, Jr.

State of Tennessee v. Michael Douglas Willis
E2002-00769-CCA-R3-CD
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge E. Shayne Sexton

The defendant, Michael Douglas Willis, was charged with DUI, violating the open container law, and violating the implied consent law. A jury convicted the defendant of violating the implied consent law but acquitted him of the other charges. The trial court subsequently overturned the jury's guilty verdict but nevertheless revoked the defendant's license for one year for violating the implied consent law. The defendant now appeals the trial court's revocation of his license. We affirm the judgment of the trial court.

Milton Lee Cooper v. State of Tennessee
E2001-01527-CCA-R3-PC
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Stephen M. Bevil

A Hamilton County jury convicted the petitioner of first degree felony murder and conspiracy to commit aggravated robbery. The petitioner was sentenced to life imprisonment for the murder conviction and to eight years incarceration for the conspiracy conviction. This court affirmed the convictions, and the Tennessee Supreme Court denied permission to appeal. The petitioner then filed a petition for post-conviction relief alleging that he received ineffective assistance of counsel at trial and on direct appeal. Specifically, the petitioner alleged that counsel: (1) failed to request an alibi instruction at trial; (2) failed to raise the alibi instruction issue on direct appeal; and (3) failed to challenge an erroneous accomplice instruction at trial and on appeal. Also, the petitioner alleged that the trial court: (1) failed to instruct the jury on the defense of alibi, thus violating the petitioner's due process rights and his right to a jury trial; and (2) failed to instruct the jury on "the natural and probable consequences rule." Following a hearing, the post-conviction court denied the petition for post-conviction relief, and this appeal ensued. Finding no error, we affirm the judgment of the post-conviction court.

State of Tennessee v. Quawn L. Lillard
M2001-02136-CCA-R3-CD
Authoring Judge: Judge J. Curwood Witt, Jr.
Trial Court Judge: Judge Steve R. Dozier

The defendant, Quawn L. Lillard, appeals his Davidson County Criminal Court convictions for aggravated robbery and aggravated assault. On appeal, he insists that the convicting evidence is not legally sufficient to support his convictions, and he claims that the trial court should not have admitted the identification testimony of one of the victims. After review, we affirm the judgments of the trial court.

State of Tennessee v. Daniel James Cosgrove
M2001-02127-CCA-R3-CD
Authoring Judge: Judge Joseph M. Tipton
Trial Court Judge: Judge William Charles Lee
The defendant, Daniel James Cosgrove, pled guilty in the Bedford County Circuit Court to nineteen felonies and thirty-one misdemeanors. The trial court sentenced him to an effective sentence of twenty-one years and eleven months, twenty-nine days in confinement to be served consecutively to another sentence for which his probation was revoked. The defendant appeals, claiming that the trial court failed to apply and weigh mitigating factors properly and improperly ordered consecutive sentencing. We affirm the judgments of the trial court.

Krishina Leach v. Nashville and Davidson County
M2000-01487-COA-R3-CV
Authoring Judge: Per Curiam
Trial Court Judge: Thomas W. Brothers
This is a Tennessee Governmental Tort Liability Act case. A tow truck owned and operated by an employee of the Metropolitan Government of Nashville and Davidson County was traveling northwardly on Second Avenue South when it struck and killed Jacob Leach, age three, and seriously injured his mother, Krishina Leach. Jacob and his mother were walking southwardly on the sidewalk when Jacob broke free of his mother's restraint and darted into the path of the truck. The trial judge concluded that the driver of the tow truck was negligent because he "should have seen what was there to be seen." The judgment is reversed upon a finding that a motorist is under no duty to assume that an escorted child, in the restraint of an adult, will suddenly break free and run into traffic.

State of Tennessee v. Richard Lacardo Elliott
M2001-01990-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Michael R. Jones

Defendant, Richard Lacardo Elliott, appeals his convictions in the Circuit Court of Montgomery County for aggravated robbery and aggravated kidnapping. Defendant argues that his conviction for aggravated kidnapping may not stand pursuant to the Tennessee Supreme Court’s holding in State v. Anthony, 817 S.W.2d 299 (Tenn. 1991). He further contends that the evidence at trial was insufficient to support his convictions, and that the trial court should have granted a motion for mistrial based upon the State’s improper comments during closing argument. We disagree, and affirm the judgments of the trial court.

State of Tennessee v. James Corey Edmiston
M2002-00059-CCA-R3-CD
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge W. Charles Lee

A jury convicted the Defendant, James Corey Edmiston, of attempted second degree murder, especially aggravated robbery, especially aggravated burglary, aggravated assault, vandalism and resisting arrest. The trial court merged the aggravated assault conviction into the attempted murder conviction. The court sentenced the Defendant as a Range I offender to ten years for the attempted murder; twenty-four years for the especially aggravated robbery; ten years for the especially aggravated burglary; and eleven months, twenty-nine days for each of the two misdemeanor convictions. The trial court ordered the felony sentences to run consecutively to each other, with the misdemeanor sentences to run concurrently with the attempted murder sentence, for an effective sentence of forty-four years. The Defendant now appeals, challenging the sufficiency of the evidence for the attempted second degree murder conviction, and the trial court's imposition of consecutive sentences. We affirm the trial court's judgment.

State of Tennessee v. Thomas Michael Shinavar
M2002-00598-CCA-R3-CD
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Judge Michael R. Jones

A Montgomery County jury convicted the defendant, Thomas Michael Shinavar, of driving under the influence (DUI), his fourth offense and a Class E felony. On appeal, the defendant presents the following issues: (1) whether the indictment charging DUI failed to satisfy constitutional and statutory requirements; and (2) whether the indictment failed to provide adequate notice to the defendant that he was charged with a felony rather than a misdemeanor. After reviewing the record, we affirm the judgment of the trial court.

State of Tennessee v. Felix M. Leach
M2001-02258-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Timothy L. Easter

A Williamson County grand jury indicted the defendant, Felix M. Leach, for possession with intent to sell or deliver cocaine, possession of marijuana, and possession of drug paraphernalia. In a negotiated plea agreement dated June 19, 2001, the defendant pled guilty as a Range II, multiple offender to each of the three counts of the indictment. The plea agreement specified that the three sentences would run concurrently and that all remaining sentencing issues would be determined by the trial court following a sentencing hearing. After a sentencing hearing, the trial court sentenced the defendant to ten years for possession with intent to sell or deliver cocaine, eleven months and twenty-nine days for each of the other two counts, and ordered the sentences to be served consecutively to a previous sentence that he was on probation for at the time. The defendant raises two issues on appeal: (1) whether the ten-year sentence for possession with intent to sell or deliver cocaine was excessive; and (2) whether the three sentences should be concurrent or consecutive to the sentence for which he was on probation at the time. After reviewing the record, we affirm the judgment of the trial court.

Hillsboro Plaza v. H.T. Pope Enterprises
M2001-02943-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Carol L. Mccoy
This cause of action involves damages resulting from the breach of a commercial lease agreement. The trial court awarded judgment to the landlord, including forfeiture damages, prejudgment interest and attorney's fees. We affirm in part and reverse in part.