State of Tennessee v. Donnell Booker E2000-02137-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Mary Beth Leibowitz
The Defendant was convicted by a Knox County jury of aggravated assault, a Class C felony. The Defendant was sentenced as a Range II multiple offender to nine years incarceration in the state penitentiary. The Defendant now appeals, arguing that insufficient evidence was presented at trial to convict him of aggravated assault. Finding no error, we affirm the judgment of the trial court.
Knox
Court of Criminal Appeals
State of Tennessee v. Demetrius Holmes E2000-02263-CCA-R3-CD
Authoring Judge: Judge J. Curwood Witt, Jr.
Trial Court Judge: Judge Richard R. Baumgartner
A Knox County jury convicted the defendant of aggravated robbery, and the trial court sentenced him as a Range I offender to eleven years incarceration. The defendant now appeals and raises the following issues: (1) whether the trial court erred by not granting a mistrial when a detective improperly testified that the Defendant was “well known for home invasions,” (2) whether the state failed to disclose fingerprint evidence in a timely fashion, and (3) whether sufficient evidence supported the defendant’s conviction for aggravated robbery. Finding that the trial court erred in denying the motion to declare a mistrial, we reverse the judgment of the trial court and remand for a new trial.
I respectfully dissent. I agree with the majority opinion that the granting or denial of a mistrial is a matter within the sound discretion of the trial court and that a trial court should grant a mistrial only when it is of “manifest necessity.” I would add that the burden of establishing a “manifest necessity” is upon the appellant. State v. Williams, 929 S.W.2d 385, 388 (Tenn. Crim. App. 1996).
Knox
Court of Criminal Appeals
Karrie Gentry vs. Bryan Gentry E2000-02714-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: L. Marie Williams
This is a divorce case. Karrie Beth Gentry ("Mother") was awarded primary residential custody of the parties' two minor children, and Bryan Keith Gentry ("Father") was ordered to pay child support of $2,100 per month. Father appeals, arguing that the trial court erred in imputing income to him for the purpose of determining child support. Because we find that the trial court properly calculated Father's income based upon what it found to be the only credible evidence presented at trial, we affirm.
William Butler Bolling appeals from the Sullivan County Criminal Court's determination that he serve his plea bargained, effective two-year sentence for gambling crimes in the Department of Correction. He claims he should have received some form of alternative sentencing, preferably probation, for his felony conviction. Because Bolling has failed to demonstrate the error of the trial court's determination, we affirm.
Sullivan
Court of Criminal Appeals
State of Tennessee v. Rhonda Grills E2000-01031-CCA-R3-CD
Authoring Judge: Presiding Judge Gary R Wade
Trial Court Judge: Judge R. Jerry Beck
The defendant, Rhonda Grills, was convicted of facilitation of the felony rape of a child less than 13 years of age. The trial court imposed a Range I sentence of 10 years. The defendant was fined $25,000.00. In this appeal of right, the defendant challenges the sufficiency of the evidence. Because the evidence is adequate to support the facilitation of the rape of a child, the judgment is affirmed.
Sullivan
Court of Criminal Appeals
Mary Ella Franklin v. Troll Associates, W1999-01164-WC-R3-CV
Authoring Judge: Don R. Ash, Sp. J.
Trial Court Judge: D.J. Alissandratos, Chancellor
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 to the Supreme Court of findings of fact and conclusions of law. The trial court awarded plaintiff twenty percent permanent partial disability to the right upper extremity for a wrist injury and an additional twenty percent permanent partial disability to the right upper extremity for a shoulder injury. Defendant appealed the decision of the trial court. We affirm and modify the judgment of the trial court. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Chancery Court Affirmed and Modified DON R. ASH, SP. J., in which JANICE M. HOLDER, J., and JOHN K. BYERS, SR. J., joined. Ralph T. Gibson, Memphis, TN, for the Appellant, Troll Associates, et al. Matthew S. Russell and John L. McWhorter, Memphis, TN, for the Appellee, Mary Ella Franklin. MEMORANDUM OPINION History Plaintiff, Mary Franklin ("Franklin"), filed a Complaint for workers' compensation benefits on May 3, 1996. The trial was heard on June 23, 1999. At the conclusion of the proof, the trial court awarded Franklin twenty percent permanent partial disability to the right upper extremity for her wrist injury and an additional twenty percent permanent partial disability to the right upper extremity for her shoulder injury. Defendants, Troll Associates and Liberty Mutual Insurance Co., appeal the decision of the trial court. For the reasons discussed below, we affirm and modify the decision of the trial court. Facts Franklin was employed at Troll Associates, Inc. ("Troll"), from September 1993 until November 1994. During her employment Franklin operated a plastic packaging and sealing machine and did some line work. Franklin would package approximately 2, packages on an average workday. Franklin's job also required her to do some repetitive lifting. Franklin began to experience pain in her right arm and shoulder. Subsequently, Franklin reported her injuryto her supervisor, who referred her to Dr. Phillip Mintz for treatment. Next, Dr. Mintz referred Franklin to an orthopedic doctor, and she was sent to Dr. Riley Jones. Dr. Jones saw Franklin concerning her complaints. She was given pain medication and sent back to work. On November 28, 1994 Dr. Jones opined Franklin had reached maximum medical improvement. Later Franklin returned to Dr. Jones with the same complaints. Dr. Jones then conducted an EMG and diagnosed her with carpal tunnel syndrome and recommended surgery. On January 3, 1995, Franklin underwent right endoscopic carpal tunnel release and right DeQuervains release. Before and after the surgery Franklin testified she told Dr. Jones of her concerns about her shoulder. On April 1, 1995, Dr. Jones stated that Franklin was ready to return to work. Dr. Jones found no permanent partial impairment as a result of Franklin's carpal tunnel injury and surgery. Further, Dr. Jones found no permanent partial impairment related to Franklin's shoulder because he never treated her for the injury. Subsequently, Franklin went to Dr. Wilkinson and complained of pain over the back of her right shoulder. Dr. Wilkinson could not find a relationship between her shoulder pain and her carpal tunnel injury. He gave Franklin a three percent permanent partial impairment to her right upper extremity as a result of the residual from her carpal tunnel syndrome. Finally, an unauthorized physician, Dr. Aronoff, examined Franklin. Franklin did not seek approval from Troll before she incurred these additional medical costs. Dr. Aronoff diagnosed Franklin with a chronic rotator cuff, tendinitis, impingement syndrome, and an arthritic AC joint. On May 6, 1996, Dr. Aronoff performed successful surgery on Franklin's shoulder. Dr. Aronoff gave Franklin a permanent partial impairment to the right upper extremity of ten percent. Further, Dr. Aronoff gave Franklin a separate ten percent permanent partial impairment rating for the residual from her carpal tunnel syndrome. Dr. Aronoff further opined that Franklin's injuries were consistent with her work history dealing with repetitive overhead lifting. Medical Evidence At trial the evidentiary deposition testimony of Dr. Jones, Dr. Wilkinson, and Dr. Aronoff were entered into evidence. Dr. Jones never treated Franklin for the shoulder injury, and Dr. Wilkinson testified there was no relationship between the Franklin's carpal tunnel injury and her -2-
Franklin
Workers Compensation Panel
Donald Ferrell v. York Trucking, Inc., M2000-01350-WC-R3-CV
Authoring Judge: John K. Byers, Sr. J.
Trial Court Judge: Jeffery Stewart, Chancellor
This workers' compensation appeal has been referred to theSpecial Workers' Compensation Appeals Panel of the Supreme Court 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. The trial court found the plaintiff had suffered an assault during the course and scope of his employment, which resulted in a permanent disability of 4 percent to the body as a whole as a result of a psychiatric injury. The trial judge also awarded the plaintiff temporary total disability, future medical benefits and other costs. We affirm the judgment of the trial court. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Chancery Court is Affirmed JOHN K. BYERS, Sr. J., in which FRANK F. DROWOTA, III, J. and JOSEPH C. LOSER, JR., SP. J., joined. Robert J. Uhorchuk, Chattanooga, Tennessee, for the appellants, York Trucking, Inc. et al. H. Thomas Parsons, Manchester, Tennessee, for the appellee, Donald Ferrell. MEMORANDUM OPINION 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 courts in workers' compensation cases. See Corcoran v. Foster Auto GMC, Inc., 746 S.W.2d 452, 456 (Tenn. 1988). Plaintiff's Biography The plaintiff was age fifty at the time of the trial. He had not completed the eighth grade in school. His work history consisted almost entirely of being a truck driver and tow-motor operator. He is married and does not have any children. History of Previous Injuries The plaintiff had a workers' compensation claim in 1982 and another in 1991. Each of these was settled. The 1991 injury occurred when the plaintiff fell from a truck of a previous employer. The plaintiff injured his neck, shoulder and lower back in that accident. Approximately nine months after the 1991 incident, the plaintiff developed a condition known as syncope, which is a fainting episode that results from coughing that causes restricted blood flow to a person's heart. In addition to the syncope, the plaintiff developed blurred vision, dizziness, headaches and depression. The episodes of fainting diminished somewhat prior to the injury in this case. The plaintiff testified the other symptoms he suffered never stopped bothering him. Discussion of Current Case This case arose out of an occurrence on July 15, 1997. The plaintiff and his wife, who drove with him because of his history of fainting, were in the course of their employment with the defendant employer. They stopped at a restaurant in Murfreesboro at approximately 3: a.m. The plaintiff and his wife went into the restaurant and got food to go. When they returned to the truck, the plaintiff's wife got into the truck and took the passenger's seat. The plaintiff testified he heard a noise at the back of the truck and went in that direction to investigate. The plaintiff said he heard something and turned and saw a man in a blue shirt. Then said the plaintiff, "my lights went out in Georgia." The plaintiff's wife did not see or hear anything occurring, but she became concerned when the plaintiff did not come into the truck. She testified she looked out toward the back of the truck and saw the plaintiff lying on the ground about half way down the length of the truck. She went to the plaintiff and held him in her lap. She got the attention of another truck driver who summoned aid from the restaurant. This driver left the area without being identified. An employee of the restaurant came out to help with the plaintiff and verified that the plaintiff was lying on the ground in an unconscious state. The only difference between the witness' testimony and that of the plaintiff's wife was that the restaurant employee said the plaintiffwas lying much nearer the driver door than did the wife. -2-
Franklin
Workers Compensation Panel
Jerry Russell v. Bill Heard Enterprises, Inc., W2000-00965-WC-R3-CV
Authoring Judge: Joe C. Loser, Jr., Sp. J.
Trial Court Judge: James F. Russell, Judge
In this appeal, the employer-appellant insists (1) the trial court erred in admitting into evidence the expert testimony of an independent medical examiner, (2) the award of permanent partial disability benefits based on 2 percent to the body as a whole is excessive and (3) the trial court erred in commuting the award to a lump sum, sua sponte. The employee-appellee insists the award of permanent partial disability benefits should be increased to one based on 4 percent to the body as a whole. As discussed below, the panel has concluded the award should be reduced to one based on 15 percent to the body as a whole, payable periodically.
Shelby
Workers Compensation Panel
Jerry Brooks vs. Melissa Ibsen, et al E2000-02870-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Billy Joe White
Jerry Brooks ("Plaintiff") contracted with Joe Ibsen d/b/a Century Wholesale Pool Supply, Inc. ("Defendant"), for the installation of a swimming pool. Plaintiff received a limited warranty. After the swimming pool developed several cracks and the parties could not reach agreement on the proper way to repair the pool, Plaintiff had the pool repaired in the manner recommended by an engineer he had retained. This lawsuit followed. The Trial Court awarded Plaintiff $61,531.28 in damages. We reduce the judgment to $51,371.28 and affirm as modified.
The petitioner/appellant, Franklin Parton, filed a pro se "Petition for Writ of Habeas Corpus" in the Knox County Criminal Court, which was dismissed by the trial court without an evidentiary hearing. Petitioner filed a motion for reconsideration and for treatment of the petition as a petition for writ of error coram nobis. This motion was also summarily denied by the trial court. We affirm the judgment of the trial court.
Knox
Court of Criminal Appeals
Hopewell Baptist Church vs. Southeast Window Mfg. Co., et al E2000-02699-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: W. Dale Young
Hopewell Baptist Church brought suit against defendant Southeast Window Mfg. LLC., alleging that it was a successor corporation and liable under a contractual warranty given by its predecessor. The Trial Court ruled that the defendant was a successor corporation and had expressly or impliedly assumed the obligations under its predecessor's warranty through the acts of its agent. We reverse.
Blount
Court of Appeals
Tonya Sexton vs. Hartco Flooring Co. E2000-02489-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Billy Joe White
The Trial Court granted defendant summary judgment on plaintiff's claims of sexual harassment and retaliatory discharge from employment. On appeal, we affirm judgment on the sexual harassment claim, but vacate and remand on claim of retaliatory discharge.
Scott
Court of Appeals
Johnson City, TN vs. Steven Taylor & Elease Taylor E2000-02491-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Jean A. Stanley
In this condemnation action, defendants attempted to appeal during pendency of the action in the Trial Court. This Court determined there was no basis to treat the issue as either an interlocutory appeal or extraordinary appeal, and dismissed appeal.
Defendant, Kenneth Griffin, was found guilty of burglary (Class D) and theft (Class D) following a bench trial. He was sentenced as a career offender on each conviction to twelve (12) years incarceration, and the sentences were ordered to be served consecutively. The Defendant, with counsel, appealed the conviction raising the sole issue of the sufficiency of the evidence. This court affirmed. State v. Kenneth S. Griffin, C.C.A. No. 03C01-9811-CR-00406, 1999 Tenn. Crim. App. LEXIS 1316, Knox County (Tenn. Crim. App., Knoxville, Dec. 27, 1999). Subsequently, Defendant timely filed a petition for post-conviction relief alleging, apparently among other issues, that he received ineffective assistance of counsel on appeal because appellate counsel did not raise as an issue the consecutive sentencing ordered by the trial court. The post-conviction court, in a written order, granted Defendant a "delayed appeal" as "authorized under TENNESSEE CODE ANNOTATED SECTION. 40-30-213." The post-conviction court's order limited the delayed appeal to the sole issue "of the correctness of [defendant's] sentence." However, the post-conviction court, while impliedly finding ineffective assistance of counsel for not raising the sentencing issue on direct appeal, made no finding that the Petitioner was prejudiced by the deficient representation. In any event, we find that the granting of a delayed appeal from the original conviction is not authorized by statute, and accordingly, this appeal from the sentence imposed in the original convictions is dismissed.
The defendant was convicted in the Knox County Criminal Court of especially aggravated robbery and felony murder. She timely appealed, arguing that the State had failed to show that statements she gave while a juvenile were admissible, that the trial court erred in not instructing as to lesser-included offenses or that the jury must find whether felony murder was a "natural and probable consequence" of especially aggravated robbery, and that the evidence was insufficient to sustain the convictions. Based upon our review, we affirm the judgments of the trial court.
The defendant, Ricky Eugene Cofer, was convicted of aggravated robbery. The trial court imposed a Range II sentence of 15 years. In this appeal of right, the defendant contends that his indictment for aggravated robbery was legally insufficient; that the evidence was insufficient to convict; and that his trial counsel was ineffective. The judgment is affirmed.
Danny Middleton v. Porcelain Products Company E2000-01464-WC-R3-CV
Authoring Judge: Howell N. Peoples, Special Judge
Trial Court Judge: Daryl Fansler, Chancellor
The employee appeals and contends the trial court erred (1) in finding his medical impairment to be eleven percent instead of eighteen percent to the body, (2) in concluding that he has employment opportunities available locally, and (3) in failing to consider economic feasibility in determining local employment opportunities. We affirm the judgment of the trial court.
Knox
Workers Compensation Panel
Michael T. Burum v. Bnfl, Incorporated and Hartford E2000-01383-WC-R3-CV
Authoring Judge: John K. Byers, Sr. J.
Trial Court Judge: James B. Scott, Judge
This workers' compensation appeal has been referred to the SpecialWorkers' Compensation Appeals Panel of the Supreme Court 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. The trial court awarded the plaintiff, who fell at work, permanentpartial disabilityof 5 percent to the left leg. We affirm the decision of the trial court. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Circuit Court is Affirmed JOHN K. BYERS, SR. J., in which E. RILEY ANDERSON, C. J., and ROGER E. THAYER, SP. J., joined. Robert R. Davies, Knoxville, Tennessee, for the appellants, BNFL, Inc. and Hartford Insurance Company. Roger L. Ridenour, Clinton, Tennessee, for the appellee, Michael T. Burum. MEMORANDUM OPINION 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 courts in workers' compensation cases. See Corcoran v. Foster Auto GMC, Inc., 746 S.W.2d 452, 456 (Tenn. 1988). Plaintiff's History The plaintiff, thirty-nine years of age at the time of trial, is a high school graduate. He attended classes at Tennessee Technical Institute and the University of Tennessee where he studied computer science. The plaintiff also served for eight years in the United States Armed Forces working in communications, computers, radios and electrical repair. The plaintiff's job history consists of work as a machine operator, a service desk employee and a paper technician with a large paper manufacturer. The plaintiff worked for the defendant, who contracted with the K-25 facility for waste management, as a waste management employee. On November 2, 1998, the plaintiff was carrying out his duties for the defendant when he fell and twisted his knee. The plaintiff eventually underwent surgery on the left knee. He testified the knee still causes him problems, and he can no longer participate in activities or work as before the injury. Discussion The trial court's decision in this case appears to be based mainly on the testimony of the plaintiff. Where the trial judge has made a determination based upon the testimony of witnesses whom he has seen and heard, great deference must be given to that finding in determining whether the evidence preponderates against the trial judge's determination. See Humphrey v. David Witherspoon, Inc., 734 S.W.2d 315 (Tenn. 1987). When the trial judge sees and hears the witnesses, it is not for this Court to determine whether a witness has so far destroyed his credibility by inconsistent statements that the trial judge is unable to give credence to any of the witness' testimony. The trial judge's finding of fact in this regard is conclusive if there is any evidence to support it. Walls v. Magnolia Truck Lines, Inc., 622 S.W.2d 526 (Tenn. 1981). In this case, the trial court made no specific finding regarding the plaintiff's credibility or lack thereof. We find nothing in the record to undermine the trial court's decision to credit the testimony of the plaintiff. Both parties in this action agreed at trial that a worker does not have to show vocational disability or loss of earning capacity to be entitled to the benefits for the loss of use of a scheduled member. Duncan v. Boeing Tenn., Inc., 825 S.W.2d 416 (Tenn. 1992). However, the plaintiff may provide such proof to the court as a factor for the court to consider when determining loss of use. In this case, the plaintiff testified as to the loss of use of his leg. He stated he did not believe he could do jobs he had previously done; he also testified he could no longer participated in sports_baseball, basketball, softball_as he had previously done. The plaintiff testified he could neither sit nor walk for long periods of time without pain and told the trial court that the injury bothered him "pretty much all the time." The plaintiff's testimony is unrefuted; the defendants offered no rebuttal proof at trial regarding the plaintiff's testimony about his vocational prospects -2-
Knox
Workers Compensation Panel
Harry M. Pack vs. Tina Lewin Ponak M2000-02285-COA-R3-CV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: Lee Russell
The Lincoln County Circuit Court granted the appellee's motion for summary judgment allowing the sale of real property held as joint tenants with the right of survivorship. We find, however, that whether there is an agreement not to partition the property is a disputed question of fact. We reverse the trial court and remand for further proceedings in accordance with this opinion.
Lincoln
Court of Appeals
Shirley Breeding vs. Robert Edwards, et al E2000-01900-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Wheeler A. Rosenbalm
We are asked to decide whether the Supreme Court's decision in the case of Brown v. Wal-Mart Discount Cities, 12 S.W.3d 785 (Tenn. 2000), is applicable to a case in which a plaintiff seeks to recover under the uninsured motorist provisions of its policy based upon the alleged negligence of an unknown motorist, the existence of whom is first asserted by a named defendant. In the instant case, a vehicle driven by the plaintiff Shirley Irene Breeding was struck by a vehicle driven by the defendant Robert Lewis Edwards and owned by the defendant Johnston Coca Cola Bottling Group, Inc. ("Johnston"). She filed a complaint against these defendants within the period of the statute of limitations and secured the service of process upon her uninsured motorist ("UM") carrier, the appellee Farmers Insurance Exchange ("Farmers"). Outside the period of the statute of limitations, the defendants amended their answer to allege that an unknown motorist caused or contributed to the accident. Within 90 days, Breeding amended her complaint to add John Doe, i.e., the unknown driver, as a party defendant. Farmers moved to dismiss the claim against it. It relied on Brown, a slip and fall case. The trial court agreed with Farmers and dismissed Breeding's claim. Breeding appeals, asserting, inter alia, that Brown does not apply to the instant case. We reverse.
Knox
Court of Appeals
Ronald Robinette vs. Mark Johnson M2000-01514-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Tom E. Gray
This appeal involves a dispute over a promissory note. The jury below found for the Plaintiff. We affirm the trial court and remand for a determination of reasonable attorneys' fees incurred by Plaintiff with respect to this appeal.
Sumner
Court of Appeals
Melissa Jane (Nichols) Steen vs. Evans Harrington Steen M2000-00313-COA-R3-CV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: Ben H. Cantrell
In this custody case the General Sessions Court of Wilson County changed its custody order from joint care and control with primary custody in the father to exclusive custody in the father and standard visitation to the mother. The record shows, however, that the mother has had primary custody of the children since the divorce and that both parties are fit parents. They each love the children and take good care of them. Under those circumstances, we hold that there is a presumption in favor of continuity of placement. Therefore, we reverse the lower court's order and grant primary custody to the mother.
Wilson
Court of Appeals
Donald Andrews vs. Barbara Andrews M2000-00163-COA-R3-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: Tom E. Gray
In this post-divorce case, each party sought modification of the child support order. The obligor father sought a decrease based on the older child's eighteenth birthday and graduation from high school. The obligee mother sought an increase based upon her belief that the father's income had increased. The trial court ordered a decrease based upon the older child's emancipation, but increased the amount due for the remaining minor child. The mother appeals, contending that the trial court failed to consider some of the father's work related benefits when setting the support. Because the mother had the burden of proving additional income to the father, and because she failed to meet that burden, we affirm the trial court.
