The defendant, Jason Allen Mobley, appeals as of right from the Henry County Circuit Court's revoking his eight-year probation. The defendant contends that the trial court erroneously revoked his probation without sufficient proof that he was using drugs. We affirm the trial court.
Henry
Court of Criminal Appeals
State of Tennessee v. Joe L. Jones W2002-00168-CCA-R3-CD
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge William B. Acree
The Appellant, Joe L. Jones, appeals from the sentencing decision of the Weakley County Circuit Court. After a trial by jury, Jones was convicted of casual exchange, a class A misdemeanor. Following a sentencing hearing, Jones received a split confinement sentence of eleven months and twenty-nine days, with forty-five days to be served in the county jail followed by probation. The trial court also imposed a $500 fine. On appeal, Jones contends that the trial court erred in imposing a sentence of continuous confinement and that the fine was excessive. Finding no error, the judgment is affirmed.
A Hamilton County jury convicted the defendant, James Dewey Jensen, Jr., of a seventh offense of driving under the influence, theft of identity, and violation of the Motor Vehicle Habitual Offenders Act. The sole issue presented by the defendant in this appeal is whether the trial court erred in denying the motion to suppress evidence obtained as a result of the vehicle stop. We affirm the judgment of the trial court.
The Defendant, Jerry W. Souder, pled nolo contendere to one count of attempted aggravated sexual battery. As part of the plea agreement, the Defendant was sentenced as a Range II offender to six years, with the manner of service to be determined by the trial court. After a hearing, the trial court ordered the Defendant to serve his sentence in the Department of Correction. The Defendant now appeals as of right, alleging that the trial court erred by denying him an alternative sentence, specifically probation. We affirm the judgment of the trial court.
The defendant pled guilty to two counts of driving after being declared an habitual motor vehicle offender and one count each of "third or subsequent" offense DUI, child endangerment, and vehicular assault, and it was agreed the trial court would determine the sentences. The trial court imposed a total effective sentence of five years, eleven months, and twenty-eight days in incarceration. In this appeal, the defendant argues the trial court erred in sentencing him. We conclude the defendant was indicted for fourth offense DUI, a Class E felony; he pled guilty to the offense as charged in the indictment, yet the plea erroneously referred to the non-existent enhancement classification of "third or subsequent" offense DUI rather than fourth offense DUI; and the defendant was erroneously sentenced for a misdemeanor based upon this non-existent enhancement classification. Because the defendant's guilty plea and sentence for this offense were erroneous and his pleas to all other offenses were part of his agreement to plead guilty, we vacate all judgments of conviction and remand to the trial court for further proceedings.
Blount
Court of Criminal Appeals
James Killingsworth vs. Ted Russell Ford E2002-01562-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Dale C. Workman
This is an action under the Tennessee Consumer Protection Act that arises out of the sale of an SUV. James Killingsworth, and his wife, Kathy Killingsworth ("the purchasers"), sued Ted Russell Ford, Inc. ("the seller"), alleging that the seller failed to advise them about damage to the previously-unowned vehicle sold to the purchasers. At the conclusion of the trial below, the jury returned a verdict in favor of the purchasers, awarding them $2,500. The purchasers then moved for attorney's fees and discretionary costs, which the court granted, but only in the amount of $500. The purchasers appeal, arguing that the fees and expenses awarded by the trial court are unreasonably low. By way of separate issues, the seller argues that the purchasers' second reply brief should be stricken and that the trial court erred in granting any fees and costs to the purchasers. We vacate and remand.
Knox
Court of Appeals
Harper Enterprises vs. City of Bean Station E2002-01734-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Richard R. Vance
The City of Bean Station ("the City") denied the application of the plaintiff ("the applicant") for a permit to sell beer for off-premises consumption. The applicant filed a petition for certiorari, naming the City and seeking a writ of mandamus to compel it to issue the requested permit. On cross motions for summary judgment, the trial court granted the City summary judgment. The applicant appeals. It contends that the City, "by actions and/or inaction," has caused its beer ordinance, which limits beer permits within the municipality to two, to be invalid. In the alternative, it contends that the City "has engaged in discriminatory, arbitrary and capricious application of the ordinance." We vacate the trial court's judgment and remand for further proceedings.
Grainger
Court of Appeals
Denver Waddell vs. Lawrence Ogledzinkski E2001-03131-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: Dale C. Workman
Knox County -In this appeal from the Knox County Circuit Court the Appellant, Denver J. Waddell, contends that the Trial Court erred in dismissing his case by grant of summary judgment upon grounds that the cause of action against the Appellee, Lawrence M. Ogledzinkski, is precluded by T.C.A. 50-6-108(a). We affirm the judgment of the Trial Court.
Knox
Court of Appeals
Chester Gray Thompson v. Nashville Electric Service M2001-02306-WC-R3-CV
Authoring Judge: Joe C. Loser, Jr., Sp. J.
Trial Court Judge: John H. Gasaway, III, 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 award of permanent partial disability benefits based on 37.5 percent to the body as a whole is excessive, (2) the trial court erred in finding that the employee suffered a back injury "in the scope and course of the employment," and (3) the trial court erred in commuting the award to a lump sum. The employee questions the admissibility of the treating physician's records because the records were neither admitted through a medical records custodian nor the deposition of the treating physician, and no C-32 form was submitted. As discussed below, the panel has concluded that any error in the admission of the medical records was harmless. We therefore affirm the judgment. Tenn. Code Ann. _ 5-6-225(e) (21 Supp.) Appeal as of Right; Judgment of the Circuit Court Affirmed JOE C. LOSER, JR., SP. J., in which JANICE M. HOLDER, J., and JAMES L. WEATHERFORD, SR. J., joined. Mark A. Baugh and Eugene Ward, Nashville, Tennessee, for the appellant, Nashville Electric Service E. Guy Holliman and William Joseph Butler, Lafayette, Tennessee, for the appellee, Chester Thompson MEMORANDUM OPINION The employee or claimant, Mr. Thompson, initiated this civil action to recover workers' compensation benefits for injuries to his back and ankle allegedly resulting from a fall during a training exercise authorized by the employer, Nashville Electric Service. The trial court awarded permanent partial disability benefits based on 37.5 percent to the body as a whole and 5 percent to his ankle.1 Both parties have appealed. 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) (21 Supp.). The reviewing court is required to conduct an independent examination of the record to determine where the preponderance of the evidence lies.
Chester
Workers Compensation Panel
Alma Haney v. Mabry Health Care, Inc. M2001-02533-WC-R3-CV
Authoring Judge: Joe C. Loser, Jr., Sp. J.
Trial Court Judge: Clara Byrd, 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 questions the trial court's award of permanent partial disability benefits based on 8 percent to the left leg. As discussed below, the panel has concluded the judgment should be affirmed. Tenn. Code Ann. _ 5-6-225(e) (21 Supp.) Appeal as of Right; Judgment of the Circuit Court Affirmed. JOE C. LOSER, JR., SP. J., in which ADOLPHO A. BIRCH, JR., J., and TOM E. GRAY, SP. J., joined. Kirk L. Clements, Nashville, Tennessee, for the appellant, Mabry Health Care, Inc. William E. Halfacre, Cookeville, Tennessee, for the appellee, Alma Haney MEMORANDUM OPINION The employee or claimant, Alma Haney, commenced this civil action to recover workers' compensation benefits for injuries arising out of and in the course of her employment with the employer, Mabry Health Care, Inc. Specifically, the employee alleged that on or about November 18, 1998, she suffered injuries to her left leg, including reflex sympathetic dystrophy (RSD). After a trial on the merits, the trial court awarded the claimant, among other things, permanent partial disability benefits based on 8 percent to the left leg. The employer has appealed. 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). The reviewing court is required to conduct an independent examination of the record to determine where the preponderance of the evidence lies.
Jackson
Workers Compensation Panel
Glenn Elizabeth Tefft v. Weakley County Ambulance M2001-02270-WC-R3-CV
Authoring Judge: Joe C. Loser, Jr., Sp. J.
Trial Court Judge: Allen W. Wallace, 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 evidence preponderates against the trial judge's finding that the plaintiff sustained a back injury on September 13, 1999 from lifting a patient where the evidence shows the plaintiff never lifted a patient, (2) the evidence preponderates against the trial judge's finding that the plaintiff gave proper notice as required by Tenn. Code Ann. _ 5-6-21 where, without a reasonable excuse for delay, plaintiff began treatment but did not inform defendant that plaintiff's alleged injury was work related until a month and fourteen days later, (3) the trial judge erred in admitting the plaintiff's entire deposition into evidence, over the objection of the defendant, when the plaintiff offered the same after excerpts of the deposition were properly offered by defendant pursuant to Tenn. R. Civ. P. 32.1, and (4) the trial judge erred in awarding the plaintiff medical expenses paid by the plaintiff's health insurance, a nonparty. As discussed below, the panel has concluded the judgment should be affirmed. Tenn. Code Ann. _ 5-6-225(e) (21 Supp.) Appeal as of Right; Judgment of the Circuit Court Affirmed JOE C. LOSER, JR., SP. J., in which JANICE M. HOLDER, J., and JAMES L. WEATHERFORD, SR. J., joined. Sean Antone Hunt, Spicer, Flynn & Rudstrom, Memphis, Tennessee, for the appellant, Weakley County Ambulance Service Charles L. Hicks, Camden, Tennessee, for the appellee, Glenn Elizabeth Tefft MEMORANDUM OPINION The employee or claimant, Ms. Tefft, initiated this civil action to recover workers' compensation benefits, as provided by Tenn. Code Ann. _ 5-6-11 et seq, for injuries allegedly suffered in a work related accident on September 13, 1999. Following a trial on August 9, 21, the trial court awarded to her, among other things, permanent partial disability benefits based on 35 percent to the body as a whole. The employer, Weakley County Ambulance Service, has appealed. For injuries occurring on or after July 1, 1985, 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) (21 Supp.). The reviewing court is required to conduct an independent examination of the record to determine where the preponderance of the evidence lies.
Weakley
Workers Compensation Panel
Royal & Sunalliance v. Barbara Cooper M2001-01580-WC-R3-CV
Authoring Judge: Joe C. Loser, Jr., Sp. J.
Trial Court Judge: Robert Corlew, III, Chancellor
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's insurer questions the trial court's finding that the employee's injury is causally related to her employment; and the employee questions the sufficiency of the award. As discussed below, the panel has concluded the judgment should be affirmed. Tenn. Code Ann. _ 5-6-225(e) (21 Supp.) Appeal as of Right; Judgment of the Chancery Court Affirmed. JOE C. LOSER, JR., SP. J., in which ADOLPHO A. BIRCH, JR., J., and TOM E. GRAY, SP. J., joined. Diana C. Benson and Larry G. Trail, Murfreesboro, Tennessee, for the appellant, Royal and SunAlliance Keith Jordan, Nashville, Tennessee, for the appellee, Barbara Cooper MEMORANDUM OPINION The appellant initiated this civil action seeking a declaration of its rights and liabilities relative to the appellee's claim for benefits under the Workers' Compensation Law. By her answer and counterclaim, the employee or claimant, Barbara Cooper, demanded medical and permanent disability benefits for an injury allegedly arising out of and in the course of her employment by Nissan North America, Inc. After a trial on the merits, the trial court awarded lifetime medical benefits and permanent disability benefits based on 13 percent to the left leg. Both parties have appealed. 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). The reviewing court is required to conduct an independent examination of the record to determine where the preponderance of the evidence lies.
Rutherford
Workers Compensation Panel
Kenneth Smith v. State of Tennessee W2001-02088-CCA-R3-PC
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Jon Kerry Blackwood
Petitioner, Kenneth Smith, appeals pro se the trial court's dismissal of his Petition for Post-Conviction Relief, which he also filed pro se. The record on appeal does not contain the transcript of the proceedings below. There is nothing in the record to indicate that Petitioner's court-appointed counsel was allowed to withdraw or that Petitioner waived the assistance of counsel on appeal. Pursuant to our holding in Drummer v. State, 6 S.W.3d 520 (Tenn. Crim. App. 1999), the judgment of the trial court is vacated and this case is remanded for the trial court to reinstate the order dismissing the Petition for Post-Conviction Relief. If Petitioner is still indigent, counsel appointed to represent Petitioner at the post-conviction hearing shall continue to represent Petitioner on appeal and the case shall proceed pursuant to the Tennessee Rules of Appellate Procedure.
Fayette
Court of Criminal Appeals
State of Tennessee v. Opal Gause W2002-01225-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Clayburn L. Peeples
Defendant, Opal Gause, entered a guilty plea to two counts of aggravated assault. The trial court sentenced Defendant to two consecutive three-year terms, for an effective sentence of six years. The sentences were suspended, and Defendant was placed on probation for the length of his original sentences. A violation warrant was subsequently issued alleging Defendant had failed to meet the conditions of his probation. Following a hearing, Defendant's probation was revoked, and he was ordered to serve his original sentence with credit for time served pre-trial. Defendant now challenges the revocation of his probation. Following a review of the record, we affirm the decision of the trial court.
Haywood
Court of Criminal Appeals
Kevin Wilkins v. State of Tennessee W2002-00436-CCA-R3-PC
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge John P. Colton, Jr.
Petitioner, Kevin Wilkins, filed his petition for post-conviction relief in the Shelby County Criminal Court on December 6, 2001. The State filed a response moving the trial court to dismiss the petition because it was filed after the statute of limitations had expired. Without a hearing, the trial court entered an order granting the State's request and dismissed the petition on the basis that it was filed past the one-year limitation set forth in Tennessee Code Annotated section 40-30-202. Petitioner filed a timely notice of appeal. We reverse the judgment of the trial court and remand this case for a hearing.
Shelby
Court of Criminal Appeals
Michael Eugene Duff v. State of Tennessee E2000-03041-CCA-R3-PC
Authoring Judge: Judge Joseph M. Tipton
Trial Court Judge: Judge Mary Beth Leibowitz
The petitioner, Michael Eugene Duff, appeals the Knox County Criminal Court’s denial of his petition for post-conviction relief from his convictions for two counts of aggravated rape and one count of aggravated kidnapping for which he received three twenty-five-year sentences to be served consecutively. This court affirmed the judgments of conviction on direct appeal. See State v. Michael Eugene Duff, No. 03C01-501-CR-00008, Knox County (Tenn. Crim. App. Feb. 8, 1996), app. denied (Tenn. July 8, 1996). The petitioner claims that he received the ineffective assistance of counsel because his trial attorney (1) failed to call a DNA serologist to testify and (2) failed to present witnesses who could testify about his physical appearance at the time of the offenses. We conclude that the trial court’s findings are insufficient for us to determine whether the petitioner received the ineffective assistance of counsel. We reverse the trial court’s judgment and remand the case in order for the trial court to make findings of fact and conclusions of law consistent with this opinion.
Knox
Court of Criminal Appeals
Michael Eugene Duff v. State of Tennessee - Order E2000-03041-CCA-R3-PC
The state has filed a Petition to Rehear relative to our opinion’s apparent imposition of limitations upon the trial court’s reconsideration of the facts upon remand. The state asserts that the trial court should have the ability to determine whether prejudice exists by considering the evidence in toto. The state notes that the trial court has not made any findings regarding prejudice and should not be restricted in its assessment. The petitioner responds that our court’s opinion foreclosed any need for the trial court to assess prejudice generally. He states that we have already concluded that prejudice exists if the trial court finds a particular witness to be credible.
Knox
Court of Criminal Appeals
Sammy Vest vs. Francis Goswitz E2001-01613-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: James B. Scott, Jr.
This is a medical malpractice case filed on January 3, 2000, and amended on January 11 of the same year. The suit was by Sammy W. Vest and his adult children, Anglia M. Somner, Cheryl D. Travis, and Danny W. Vest, against Dr. Francis Goswitz and Dr. Helen Vodopick. The suit seeks damages for the Defendants' failure to refer Mr. Vest to a specialist, resulting in an injury to him as well as to his children. The Trial Judge sustained a motion by the Defendants to dismiss the children as parties Plaintiff, and later a motion for summary judgment as to Mr. Vest's suit. He further granted sanctions pursuant to Rule 11.03 against counsel for the Plaintiff. We affirm.
Anderson
Court of Appeals
Gweneth J. Freels vs. Evelyn Jones E2002-00895-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Frank V. Williams, III
Defendant demanded a jury in Answer but the trial judge ruled defendant waived right to a jury trial. On appeal, we affirm.
Morgan
Court of Appeals
Chelsea Pirkle vs. Justin Parker E2002-01751-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Dale C. Workman
The trial court refused to set aside the Default Judgment. On appeal, we vacate and remand.
Knox
Court of Appeals
Nancy Crawford vs. Roger Crawford E2002-00372-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Thomas R. Frierson, II
Plaintiff/Appellant Nancy Crawford owns an interest in a parcel of real property located in Hawkins County, Tennessee as tenants in common with the Defendants/Appellees. Appellant Nancy Crawford filed suit seeking a partial partition in kind of the subject property and requesting a tract containing approximately .604 acre be set aside for her. The .604 acre adjoins land owned by Ms. Crawford. The .604 acre contains a barn, which Ms. Crawford and her late husband had maintained, improved, and used since the late 1980's believing it was located on their property. Appellees opposed a partition in kind and requested a partition sale. The Trial Court found it in the manifest best interest of all parties for the property to be sold, rather than partitioned in kind, and ordered a sale. We modify the judgment, affirm as modified, and remand.
Hawkins
Court of Appeals
Alica Rakestraw vs. Gregory Rakestraw E2002-01151-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: Jerri S. Bryant
The sole issue in this divorce case is whether the Trial Court reached the correct decision regarding custody of the parties' child. The Court granted primary custodial care of the parties' daughter, Kendra Paige Rakestraw, then 10 years old, to Gregory Keith Rakestraw ("Father"). Alica Delane Rakestraw ("Mother") argues on appeal that the evidence preponderates against the Court's exercise of discretion in rendering its custody decision, and that the Court erred in denying her motion to alter or amend the judgment and her motion for a new trial. We affirm the judgment of the Trial Court in all respects.
Venita Michelle Burchell appeals from her aggravated child abuse and criminally negligent homicide convictions. Her convictions result from a jury trial in the Davidson County Criminal Court pertaining to fatal injuries inflicted upon Nicholas Boyd Cotton, who was sixteen months old at the time of his death. Ms. Burchell urges us to find error in the lower court's acceptance of the verdict, the admission of prior bad act evidence, and the limiting of defense expert testimony. Because no harmful error occurred, we affirm.
Defendant, George William King, has appealed the sentence imposed upon him by the trial court after he pled guilty to one count of statutory rape. We affirm the judgment of the trial court.
Davidson
Court of Criminal Appeals
Lon S. Walker v. State of Tennessee M2001-01090-CCA-R3-PC
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Leon C. Burns, Jr.
Petitioner, Lon Walker, filed a petition for post-conviction relief from his conviction for second degree murder, alleging that he was denied effective assistance of counsel. Following an evidentiary hearing, the post-conviction court denied relief. In his appeal to this court, Petitioner raises the issue of whether the trial court erred in finding that Petitioner received effective assistance of counsel at trial. After a careful review, we affirm the judgment of the post-conviction court.
