Opinions

Emily Lewis vs. Life Care Centers of America
E2001-01812-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: L. Marie Williams
Emily Lewis, a student enrolled in a Certified Nursing Assistant's training program operated and supervised by Nursetrainers, Inc., sues Life Care Centers of America, Inc. The suit seeks damages for injuries resulting to Ms. Lewis, who was taking training to become a Certified Nursing Assistant. As a result of Life Care's negligence, the original complaint alleged several other causes of action, all of which have been abandoned on appeal. We affirm.

Roy Gray vs. Nancy Gray
E2001-02470-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: Bill Swann
In this divorce case from the Circuit Court for Knox County the Appellant, Roy William Gray, contends that the Trial Court erred in failing to disqualify counsel for the Appellee, Nancy Jane Gray. Mr. Gray further contends that the Court erred in dividing the marital assets, in granting both parties a divorce, and in awarding Ms. Gray post trial attorney's fees. Ms. Gray asserts that she should be reimbursed for attorney's fees incurred by her in responding to this appeal upon the grounds that the appeal is frivolous and devoid of merit. The judgment of the Trial Court is affirmed in part and reversed in part.

Jan W. Gamble v. Alex Grady Gamble, Iii
2001-01392-COA-R3-CV
Trial Court Judge: L. Marie Williams

Kathy Jean Berry v. Sara Lee Corporation d/b/a Jimmy
W2001-00041-WC-R3-CV
Authoring Judge: L. Terry Lafferty, Senior Judge
Trial Court Judge: J. Steven Stafford, Chancellor
In this appeal, Defendants/Appellants asks: (1) Did the trial court err in finding that Plaintiff sustained a compensable injury to her shoulder?; (2) Did the trial court err in finding that Plaintiff sustained a second and distinct compensable injury to her right elbow?; and (3) Did the evidence presented at trial preponderate against the amount of the permanent partial disability benefits awarded by the trial court, with respect to the shoulder injury and the second right elbow injury? As discussed below, the trial court did not err and this panel has concluded that the judgment should be affirmed.

State of Tennessee v. Tracy T. Bostic
M2000-02941-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Timothy L. Easter

The Williamson County Grand Jury returned separate, one-count presentments against the defendant, Tracy T. Bostic, charging him with felony sale or delivery of a controlled substance, in violation of Tennessee Code Annotated section 39-17-417, and with felony sale or delivery of a counterfeit controlled substance, in violation of Code section 39-17-423. The defendant was tried and convicted on the controlled substance charge, and the trial court imposed an incarcerative sentence of nine years as a Range II, multiple offender and assessed a $25,000 fine. The defendant elected to forego a trial on the counterfeit controlled substance charge, and he entered a “blind” guilty plea to that offense, for which he received a three-year incarcerative sentence as a Range II, multiple offender, which was ordered to be served consecutively to the nine-year sentence. On appeal, the defendant contests the sufficiency of the evidence upon which his controlled substance conviction rests, and he complains about the length and manner of service of his combined sentences and about the $25,000 fine. Based upon our review of the video record in this case and our consideration of the briefs of the parties and applicable law, we affirm the defendant’s convictions and the incarcerative portion of his sentences, but we modify the $25,000 fine imposed to $15,000.

Elaine Wynn vs. Joseph Hames
W2001-00269-COA-R3-CV
Authoring Judge: Judge W. Frank Crawford
Trial Court Judge: Julian P. Guinn
This a medical malpractice case. Plaintiff's decedent saw Defendant, an emergency room physician, who diagnosed decedent with pneumonia and sent decedent home with antibiotics. Plaintiff's decedent died the next day from congestive heart failure. Plaintiff, wife of decedent, sued Defendant for malpractice. The jury's verdict found decedent 90% at fault and Defendant 10% at fault, and the trial court entered judgment for Defendant on the jury verdict. Plaintiff appeals. We affirm.

E2001-02926-COA-R3-CV
E2001-02926-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: W. Dale Young

John Sicard vs. Leon Williams, Inc.
E2001-02928-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: W. Dale Young
The Trial Court awarded plaintiff commission under Agreement between the parties. On appeal, we reverse on grounds that plaintiff's misrepresentation in procuring a contract with a third party, denied his contractual right to the commission.

In Re: Mackenzie J. Marlowe, Gregory Marlowe v. Stacy
E2002-00105-COA-R3-JV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: John W. Walton

In Re: Madelanie Redman, Ray & Martha Bowen v. Nathan Redman
E2001-02730-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Kindall T. Lawson

In Re: Madelanie Redman, Ray & Martha Bowen v. Nathan Redman
E2001-02730-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks

April Grant Ingle vs. Robert Wayne Ingle
E2001-02802-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: W. Neil Thomas, III
This is a post-divorce case. The parties were divorced in 1998. On September 21, 2000, April Grant Ingle ("Mother") filed a petition to modify the parties' divorce judgment. She alleged that Robert Wayne Ingle ("Father") had been unemployed at the time of the divorce, and, consequently, was not ordered to pay child support. She further alleged that he had subsequently become employed and that he should now be ordered to pay child support computed pursuant to the Tennessee Child Support Guidelines ("the Guidelines"). Mother also sought to modify Father's visitation as set forth in the divorce judgment. After comparing the parties' respective incomes, the trial court ordered Father to pay child support of $177 per month. Mother appeals. We vacate the trial court's child support award and the effective date of that award. The remainder of the trial court's order is affirmed. This case is remanded to the trial court for such additional proceedings as may be necessary and for the entry of an order consistent with this opinion.

Durnelco, Inc. vs. Double James
E2001-02010-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: W. Frank Brown, III
This case involves the interpretation of a commercial lease agreement. The tenant, Durnelco, Inc. ("Durnelco"), filed a complaint for declaratory judgment, seeking a declaration that it properly terminated the lease agreement on July 31, 2000. Durnelco also asked that it be permitted to remove, at its expense, certain improvements made by it to the leasehold premises, including some flooring, walls, doors, windows, bathroom fixtures, and exterior decking. The present landlord, Double James, LLC ("Double James"), answered and filed a counterclaim asserting that Durnelco had breached the lease and had refused to surrender possession of the premises. It sought damages as a result of Durnelco's alleged holdover tenancy. The trial court allowed Durnelco to remove only two signs and certain light fixtures. The court awarded Double James $7,000 in rent for the period of July through December, 2000. Durnelco appeals. We affirm.

William J. Vincent v. Reid Troutman, Executor, Et Al.
2001-03035-COA-R3-CV
Trial Court Judge: Billy Joe White

Herschel Edwin Luna v. Gaf Fiberglass Corporation,
M2001-01155-WC-R3-CV
Authoring Judge: Joe C. Loser, Jr., Sp. J.
Trial Court Judge: Carol Soloman, Judge
In this appeal, the employer insists (1) the claim is barred by Tenn. Code Ann. _ 5-6-23 and (2) the trial court's award of permanent partial disability benefits based on 1 percent hearing loss is excessive. As discussed below, the panel has concluded the judgment should be affirmed.

John Marshall v. Sverdrup Technologies, Inc.
M2000-02951-WC-R3-CV
Authoring Judge: Howell N. Peoples, Special Judge
Trial Court Judge: Jeffrey Stewart, Chancellor
The employer appeals an award of permanent total disability benefits to age 65, and the Second Injury Fund appeals the apportionment of liability for 3 percent of the benefits to the Fund. We affirm the judgment of the trial court.

Donald R. Moore v. L and D Transportation
E2000-02779-WC-R3-CV
Authoring Judge: John K. Byers, Sr. J.
Trial Court Judge: John F. Weaver, Chancellor
The trial court found the plaintiff had suffered a compensable back injury and awarded 35 percent permanent partial disability. The plaintiff has three prior awards of workers' compensation benefits beginning in 1975 with an award of 7 percent for an injury to his left hand, which translates into 2.625 percent to the body as a whole, and, for back injuries, an award in 198 of 25 percent to the body as a whole and in 1998, an award of 59.718 percent to the body as a whole from the State of Kentucky. The trial court apportioned 12.657 percent to the defendant and the balance to the Second Injury Fund. The employer questions whether the evidence supports a finding that the plaintiff suffered a work-related injury resulting in 35 percent disability. The plaintiff appeals and argues he is permanently and totally disabled. We affirm the judgment of the trial court.

State of Tennessee v. William David Marks
M2001-01497-CCA-R9-CO
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Judge Cheryl A. Blackburn

The defendant brings this interlocutory appeal in which he challenges the prosecutor's denial of pretrial diversion for simple assault and the trial court's denial of his certiorari petition. We conclude the prosecutor properly considered the need for deterrence for domestic violence, the defendant's lack of remorse and failure to take responsibility for his actions, and the seriousness of the offense and its impact upon the victim. However, we conclude the prosecutor wrongfully considered certain factors relating to domestic violence cases that have no application to the circumstances of this case, and wrongfully considered the defendant's depression for which he takes prescription medication. Accordingly, we reverse the order of the trial court and remand this matter to the district attorney general for further consideration in accordance with this opinion.

Floyd Campbell v. State of Tennessee
M2001-00408-CCA-R3-PC
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge J. S. Daniel

Petitioner, alleging ineffective assistance of counsel, appeals the trial court's denial of post-conviction relief. Petitioner claims counsel failed to adequately investigate evidence and properly file a motion for new trial and an amended motion for new trial. We conclude counsel was not ineffective and affirm the post-conviction court's judgment.

Robert L. Freeman v. State of Tennessee
M2000-00904-CCA-R3-PC
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Judge Jane W. Wheatcraft

The petitioner originally pled guilty pursuant to a negotiated plea agreement to one count of aggravated assault for an agreed eight-year sentence as a Range II multiple offender. He timely sought post-conviction relief, which was denied by the post-conviction court. In this appeal, the petitioner contends his trial counsel was ineffective, and his guilty plea was involuntary. We affirm.

Alberta Dodson v. James Dodson
M2000-01682-COA-R3-CV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: Muriel Robinson
The trial court awarded a divorce to the parties, and ordered the husband to pay $1,000 per month as alimony in futuro. In light of the needs of the wife, and of the husband's ability to pay, we increase the alimony award to $1,500 per month.

Brendi Kaplan v. John A. Bugalla
M2003-01012-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Donald P. Harris
This case involves a petition to modify child support. By court approved Marital Dissolution Agreement executed May 10, 2002, child support payable by the father was set at $4,000 per month. At the time of the agreement and divorce decree father was earning in excess of $20,000 per month. The parties did not appeal the May 10, 2002 judgment, but on September 4, 2002 the mother filed a petition to increase child support in order to accommodate attendance of the two children to private school. The trial judge denied the petition. We affirm the action of the trial court.

Ricardo Maxwell v. State of Tennessee
W2000-02011-CCA-R3-PC
Authoring Judge: Judge Jerry L. Smith
Trial Court Judge: Judge Joe C. Morris

A Madison County jury convicted the petitioner and his co-defendants of felony murder, conspiracy to commit especially aggravated burglary, especially aggravated burglary, and theft over five hundred dollars. See State v. Montez Antuan Adams, No. 02C01-9709-CC-00352, 1998 WL 556174, at *1 (Tenn. Crim. App. at Jackson, Sept. 1, 1998). For these offenses the petitioner effectively received a life sentence. Id. On appeal this Court reduced the especially aggravated burglary to aggravated burglary and announced the corresponding sentence for this offense with respect to the petitioner and each of his co-defendants; however, the remainder of the convictions were affirmed, and the effective sentence remained the same. Id. at *1, *9. Subsequently, the petitioner filed a pro se post-conviction petition and received appointed counsel thereon. At the evidentiary hearing on this petition, the petitioner unsuccessfully pursued an ineffective assistance of counsel claim. Through this appeal he continues to aver that he received ineffective assistance because counsel did not fully discuss potential trial tactics and strategies with him, thereby depriving him of the opportunity to aid in his defense. After considering this matter, we determine that the petitioner has failed to prove that this claim merits relief. As such, we affirm the trial court's dismissal of the petitioner's post-conviction petition.

State of Tennessee v. Kenneth Javon Bills
W2001-00396-CCA-R3-CD
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge Jon Kerry Blackwood

The Defendant, Kenneth Javon Bills, was convicted by a jury of attempted second degree murder and aggravated assault. He was sentenced as a Range I standard offender to ten years for the attempted murder and four years for the aggravated assault, to be served concurrently in the Department of Correction. In this direct appeal, the Defendant raises the following issues: (1) whether the evidence is sufficient to sustain his convictions; (2) whether double jeopardy principles require dismissal of his aggravated assault conviction; (3) whether the trial court erred by admitting certain rap lyrics authored by the Defendant; and (4) whether his sentence is excessive. Finding that double jeopardy principles prohibit the Defendant's dual convictions, we reverse and dismiss the Defendant's conviction for aggravated assault. In all other respects, we affirm the trial court's judgment.

Michele Renee Smith v. Cookeville Regional Medical
M2001-00982-WC-R3-CV
Authoring Judge: James L. Weatherford, Sr. J.
Trial Court Judge: John J. Madduxjudge
The defendant appeals the judgment of the trial court finding that the employee, an ICU nurse: 1) suffered a back injury while caring for a patient that aggravated her pre-existing back condition; 2) gave proper notice of her injury under the circumstances; and 3) sustained a 17% anatomical impairment and 37% permanent partial disability to the body as a whole. We hold that the evidence does not preponderate against the trial court's findings. Accordingly, the judgment of the trial court is affirmed.