Darrell Dwain Binkley v. Tennessee Diecasting-Harvard
02188-SC-WCM-CV
Authoring Judge: Arnold B. Goldin, Sp. J.
Trial Court Judge: Martha Brasfield, Chancellor
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel in accordance with the Tenn. Code Ann. Section _5-6-225 (e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The Appellant, employer, argues that the trial court erred in finding that the employee sustained a herniated disc as a result of his on the job injury; in awarding temporary total and permanent partial disability benefits and in not applying the "Last Injurious Injury Rule" to dismiss the employee's claim against Appellant. The Appellee, employee, argues that the trial court erred in limiting employees permanent award to 2.5 times the anatomical rating pursuant to T.C.A. _5-6-241(a)(1) because employee's return to work was not "meaningful". For the reasons discussed below, the panel has concluded that the judgment of the trial court should be affirmed in all respects. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Chancery Court Affirmed ARNOLD B. GOLDIN, Sp. J., in which HOLDER, J. and LOSER, Sp. J. joined. Byron K. Lindberg and Peggy Tolson, Tolson and Associates, Brentwood, Tennessee, for the appellant, Tennessee Diecasting-Harvard Industries and ITT Hartford Insurance Group D. Michael Dunavant, Ripley, Tennessee, for the appellee, Darrell Dwain Binkley MEMORANDUM OPINION STANDARD OF REVIEW The review of the findings of 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. T.C.A. _ 5-6-225(e)(2). Stone v. City of McMinnville, 896 S.W. 2d 548,55 (Tenn. 1995). This court is not bound by the trial court's findings, but instead conducts its own independent examination of the record to determine where the preponderance lies. Galloway v. Memphis Drum Service, 822 S.W.2d 584, 586 (Tenn. 1981). FACTUAL BACKGROUND The employee, Darrell Dwain Binkley, filed his complaint for workers' compensation benefits alleging that he sustained an injury to his lower back on September 29, 1997, when he lifted a five gallon bucket of oil, weighing approximately 75 pounds, while at work for his employer, Tennessee Diecasting. His complaint alleged that his injury was permanent and that he was entitled to benefits for both temporary total and permanent partial disability, in addition to current and future medical care. Appellant denied the employee's claim in its entirety and further alleged that if the employee sustained an on the job injury that the court should dismiss the claim against it based on the "Last Injurious Injury Rule". Following a trial on May 21, 22, the court found that the employee sustained a compensable injury to his low back and awarded him five (5%) per cent permanent partial disability to the body as a whole. The court further found that the employee was entitled to benefits for a period of temporary total disability and that the "Last Injurious Injury Rule" did not apply to the facts of this case. The employer has appealed from the entire award. The employee was 42 years old at the time of trial. He had a varied work history. He had been in the military, albeit briefly; had performed seasonal work at two different cotton gins over several years; had worked as a laborer at factories and warehouses and had been a maintenance man for two adult family homes in the State of Washington, one of which was owned by his former wife. He had also worked as a laborer and maintenance man for a diesel company. While working for this employer in 1988, he slipped and sustained a herniated disc at the L5-S1 level for which he underwent surgery. He received a workers' compensation settlement as a result of this injury. LEGAL AND MEDICAL CAUSATION The employee went to work for the Appellant in 1997. His duties were to operate a machine and to dispense parts. His job required constant lifting, bending and stooping. Part of his job required him to keep the machines well oiled and lubricated. The oil for the machines was carried in the plant in large open buckets. The oil would splash out of the buckets onto the floor causing a slipping hazard. On the day of his injury, he was preparing to carry oil to his machine in a 5 gallon bucket, -2-

Willie Jean Head v. Nissan Motor Manufacturing
M2002-1908-WC-R3-CV
Authoring Judge: Joe C. Loser, Sp. J.
Trial Court Judge: Carol L. Mccoy, Chancellor
In this appeal, the employee insists the trial court erred in disallowing benefits for a left shoulder injury for failure to give timely written notice. As discussed below, the panel has concluded the evidence fails to preponderate against the findings of the trial court.

Thomas K. Bowers vs. Gutterguard of Tennessee
M2002-02877-COA-R3-CV
Authoring Judge: Judge Frank Clement, Jr.
Trial Court Judge: Hamilton V. Gayden, Jr.
The defendant challenges the Circuit Court's dismissal of an appeal from General Sessions Court for failure to comply with Davidson County Local Rule of Practice 20(b). The Local Rule required the appealing party to set the matter for trial no more than 45 days following the Circuit Court Clerk's receipt of the appeal. Though the defendant had filed a motion to set, an order setting the matter for trial had not been entered when the Circuit Judge dismissed the appeal and made the judgment of the General Sessions Court the final judgment. The defendant/appellant sought Rule 60.02(1) relief, claiming excusable neglect, which was denied. Based upon recent authority, determination of "excusable neglect" for Rule 60 purposes now requires an evaluation of three factors: whether the defaulting party's conduct was willful, whether there exists a meritorious defense, and whether the non-defaulting party has been prejudiced. We find the defendant's negligence was not willful and that the plaintiff suffered no prejudice; however, the record is silent concerning whether the defendant has a meritorious defense. Therefore, we reverse the trial court and remand the matter to the Circuit Court for further proceedings consistent with this ruling.

Kathy Clark vs. Randall McClung
M2003-00552-COA-R3-CV
Authoring Judge: Judge Frank Clement, Jr.
Trial Court Judge: Hamilton V. Gayden, Jr.
Due to plaintiffs' failure to file an alias summons within one year of the date the original complaint and summons were filed, the Circuit Court granted defendant's Motion to Dismiss for plaintiffs' failure to Comply with Rule 3, Tenn. R. Civ. P. Plaintiffs appealed asserting the error was due to the Circuit Court Clerk's refusal to file the alias summons and that the trial court abused its discretion in dismissing the case. We affirm the judgment of the trial court.

William Terry v. State of Tennessee
W2003-00218-CCA-R3-PC
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Bernie Weinman

Petitioner, William Terry, appeals the post-conviction court’s denial of his petition for post-conviction relief. Petitioner argues that the post-conviction court erred in finding that Petitioner’s plea of guilty was voluntary and knowing and in finding that Petitioner’s trial counsel rendered effective assistance of counsel prior to and during plea negotiations. For the reasons discussed herein, we affirm the post-conviction court’s dismissal of the petition for post-conviction relief.

State of Tennessee v. Calvin Owens
W2003-00033-CCA-R3-CD
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge Joseph B. Dailey

The Defendant, Calvin Owens, was convicted of two counts of aggravated robbery, one count of attempt to commit especially aggravated robbery, and one count of attempted second degree murder, all Class B felonies. After a sentencing hearing, the trial court sentenced him as a Range I offender to eleven years for each of his four convictions. The trial court ordered three of the sentences to be served consecutively, with the sentence for the remaining conviction to be served concurrently, resulting in an effective sentence of thirty-three years. In this direct appeal, the Defendant argues that the evidence is insufficient to support his convictions and that the trial court erred in sentencing him to thirty-three years. We affirm the judgments of the trial court.

Dept of Children's Srvcs. vs. A.W.S. & E.S. In Re: R.T.S.
E2002-02227-COA-R3-JV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: William T. Denton
The State of Tennessee, Department of Children's Services ("DCS") filed a petition seeking to terminate the parental rights of A.W.S. ("Mother") and E.S. ("Father"), the biological parents of the minor child, R.T.S. ("the Child"). The Juvenile Court granted DCS' petition to terminate Mother's and Father's parental rights. Both Mother and Father appeal. We affirm.

State of Tennessee v. Treacy F. Lewis
M2002-01694-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Robert E. Burch

Defendant, Treacy F. Lewis, entered a plea of nolo contendre to the offense of murder in the second degree. Following a sentencing hearing, the trial court sentenced Defendant to twenty-three years in the Tennessee Department of Correction. Defendant appeals the length of her sentence, arguing that the trial court misapplied enhancement factor (4), the victim was particularly vulnerable because of age and physical disabilities, and failed to give sufficient consideration to the applicable mitigating factors. Defendant does not challenge the application of enhancement factor (9), based upon the use of a gun in the commission of the offense. Based on a review of the record, we conclude that the trial court improperly applied enhancement factor (4) in its sentencing determinations. Accordingly, we modify the judgment of the trial court to reduce the sentence to twenty-two years.

Ronald Paul v. State
M2003-01244-COA-R9-CV
Appellant, a state prison inmate, filed a claim with the Tennessee Claims Commission against the State of Tennessee for the alleged malpractice of Dr. Paul Somers, a physician acting under contract with the Department of Corrections, to provide medical care for inmates. The Commission granted summary judgment on the basis that Dr. Somers was not a "state employee" within the meaning of Tennessee Code Annotated section 8-42-101(a)(3). We affirm the action of the Commission.

Carrol Preston Flannary v. Joyce Ann Flannary
E2002-00869-SC-R11-CV
Authoring Judge: Justice Janice M. Holder
Trial Court Judge: Judge Ben K. Wexler

We granted permission to appeal to determine whether the trial court erred in dividing as marital property funds that were missing at the time the divorce complaint was filed. We hold that the missing funds are not marital property that can be divided between the parties. However, we also conclude that the trial court may properly consider Husband's careless handling of those funds in distributing property that does constitute marital property. Therefore, we affirm the judgment of the Court of Appeals as modified, and we remand the case to the trial court for reconsideration of its property division and alimony award.

Edward Caksackkar v. Goodyear Tire
W2002-02368-SC-WCM-CV
Authoring Judge: Arnold B. Goldin, Sp.J.
Trial Court Judge: William B. Acree, Circuit Judge
The trial court found that the plaintiff was permanently and totally disabled. The parties do not contest this finding. The appellant, Second Injury Fund, argues, however, that the trial court erred in its apportionment of liability between the Fund and the employer when it held that only 25% permanent vocational impairment should be apportioned to the employer and 75% apportioned to the Fund as a result of the plaintiff's last back injury. For the reasons discussed below, the Panel has concluded that the judgment of the trial court should be modified so that 75% permanent vocational impairment is apportioned to the employer and 25% apportioned to the Fund.

03-03-026-CC
03-03-026-CC
Trial Court Judge: A. Andrew Jackson

Milburn L. Edwards v. State of Tennessee
M2002-02124-CCA-R3-PC
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge J. Randall Wyatt, Jr.

Petitioner, Milburn L. Edwards, filed a petition for post-conviction relief, which was subsequently amended. Following an evidentiary hearing, the petition for post-conviction relief was dismissed. On appeal, Petitioner argues (1) that the post-conviction court erred in not stating its findings of fact and conclusions of law in its order denying Petitioner post-conviction relief; (2) that Petitioner received ineffective assistance of counsel at trial and on appeal; and (3) that Petitioner was not afforded a full and fair evidentiary hearing. After a thorough review of the record, we find no error and affirm the judgment of the post-conviction court.

Morristown Surgery v. Tennessee Health Facilities Commission
M2002-02872-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Ellen Hobbs Lyle
This appeal under the Administrative Procedures Act challenges a chancery court order affirming the dismissal of the Appellant's Petition for Contested Case Review. We affirm.

Cecil Jacobs v. Edwin Underhill
M2002-02866-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Timothy L. Easter
The appellants challenge the trial court's Order commanding them to remove a portion of their patio and garage and any portion of their residence constructed since 1999 which encroaches on the appellees' property. We affirm.

In the Matter of: D.L.(P.)C.,et al
M2003-00088-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Muriel Robinson
Mother appeals the trial court's award of custody of her four minor children to the Tennessee Department of Children's Services based on a finding of dependency and neglect. We affirm.

Jennifer Biscan v. Franklin Brown
M2001-02766-COA-R3-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: Carol L. Soloman
After attending a party where alcohol was present, a minor intoxicated driver and minor guest passenger were involved in an automobile accident in which the passenger suffered serious injury. The passenger sued the driver and the adult host of the party. The jury awarded the minor guest passenger damages and allocated fault 70% to the minor intoxicated driver, 15% to the adult party host, and 15% to the minor guest passenger. The driver and the host appeal various rulings of the trial court. We affirm.

Carl E. Saine v. State of Tennessee
W2002-03006-CCA-R3-PC
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge W. Fred Axley

On September 1, 1977, the petitioner, Carl E. Saine, was convicted by a jury in the Shelby County Criminal Court of one count of rape and one count of assault with the intent to commit murder in the first degree. He was sentenced to ninety-five years imprisonment for his rape conviction and to not less than six years nor more than twenty-one years imprisonment for his assault conviction. Subsequently, the petitioner filed to compel testing of evidence under the Post-Conviction DNA Analysis Act of 2001. The post-conviction court denied the petition and the petitioner timely appealed. Upon review of the record and the parties’ briefs, we affirm the judgment of the post-conviction court.

State of Tennessee v. Titus Champion
W2002-02829-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Clayburn L. Peeples

The appellant, Titus Champion, was convicted of robbery pursuant to a bench trial in the Gibson County Circuit Court. The trial court sentenced the appellant as a Range II multiple offender to six years incarceration in the Tennessee Department of Correction. On appeal, the appellant contends that the State did not prove the element of violence as was alleged in the indictment charging the appellant with robbery. Finding the appellant’s argument to have merit, we modify his conviction for robbery to a conviction for theft under $500 and remand to the trial court for sentencing.

Jerry Lee Cowan v. State of Tennessee
E2003-00652-CCA-R3-PC
Authoring Judge: Judge J. Curwood Witt, Jr.
Trial Court Judge: Judge D. Kelly Thomas, Jr.

The petitioner, Jerry Lee Cowan, seeks appellate review of the Blount County Circuit Court's denial of his motion to reopen his 1992 post-conviction relief petition. Finding no merit in the appeal, we affirm the lower court's judgment.

Helen Louise Henson v. Factory & Steel Transportation,
M2002-02761-WC-R3-CV
Authoring Judge: Joe C. Loser, Jr., Sp. J.
Trial Court Judge: Allen Wallace, Judge
In this appeal, Tennessee Insurance Guaranty Association insists the trial court erred in determining (1) the employee was permanently and totally disabled, (2) the last injurious injury rule did not apply and (3) the employee's permanent and total disability benefits accrued beginning March 14, 21. The employee insists the preponderance of the evidence supports the findings of the trial court. As discussed below, the panel has concluded the judgment should be modified with respect to the date of injury.

Victor Salazar v. Concrete Form Erectors, Inc.,
M2002-03040-WC-R3-CV
Authoring Judge: Joe C. Loser, Jr., Sp. J.
Trial Court Judge: Irvin H. Kilcrease, Chancellor
In this appeal, the employer insists the trial court erred in (1) finding that the claim is not barred by the employee's willful and intentional failure to follow established policy requiring the use of a safety appliance, (2) finding that the employee has a 39 percent medical impairment and awarding permanent partial disability benefits based on 78 percent to the body as a whole. As discussed below, the panel has concluded the evidence fails to preponderate against the findings of the trial court.

State of Tennessee v. Hoyle Orr
E2002-03061-CCA-R3-CD
Authoring Judge: Judge Joseph M. Tipton
Trial Court Judge: Judge D. Kelly Thomas, Jr.

The defendant, Hoyle Orr, appeals as of right from his convictions following a bench trial in the Blount County Circuit Court for driving under the influence (DUI), third offense, a Class A misdemeanor, and driving on a revoked license, a Class B misdemeanor. The defendant received concurrent sentences of eleven months, twenty-nine days for the DUI and six months for driving on a revoked license and was ordered to serve seven months of his sentence in the county jail, the remainder on probation. He was fined one thousand, one hundred dollars and his license was revoked for three years. The defendant contends that (1) the evidence is insufficient to support his conviction for DUI, and (2) the trial court erred by sentencing him to more than the statutory minimum amounts of confinement for the convictions. We affirm the judgments of conviction.

Andrew Levi Jefferson v. State of Tennessee
M2002-01604-CCA-R3-PC
Authoring Judge: Judge J. Curwood Witt, Jr.
Trial Court Judge: Judge Steve R. Dozier

The petitioner, Andrew Levi Jefferson, appeals from the Davidson County Criminal Court's denial of post-conviction and habeas corpus relief. In his amended, combined petitions for relief, the petitioner challenges his 2001, guilty-pleaded convictions of second degree murder and attempt to commit especially aggravated robbery. On appeal, the petitioner claims post-conviction relief because his trial counsel were ineffective in failing to defeat the transfer of the petitioner's case from juvenile court to criminal court, in preventing the petitioner from testifying at the transfer hearing, by failing to investigate and discover the petitioner's mental status, and in failing to present a critical issue in pretrial motions. Also, the petitioner claims that his guilty pleas were involuntary and unknowing and that he was denied due process because he was not allowed to testify in the juvenile court transfer hearing. In his joined claim for habeas corpus relief, the petitioner claims that, because of errors in the transfer from juvenile court, the criminal court lacked jurisdiction to adjudicate his case. Based upon our review, we find no reversible error and affirm the actions of the post-conviction court.

State of Tennessee v. Steven A. Norvell
M2002-01866-CCA-R3-CD
Authoring Judge: Judge Joseph M. Tipton
Trial Court Judge: Judge Frank G. Clement, Jr.

The defendant, Steven A. Norvell, was convicted by a Davidson County Criminal Court jury of driving under the influence (DUI), third offense, a Class A misdemeanor. The trial court sentenced him to eleven months, twenty-nine days to be served as one hundred forty days in jail and the remainder on probation. In addition, the trial court ordered that he participate in an alcohol evaluation and treatment program, suspended his driving privileges for three years, and imposed a one thousand one hundred dollar fine. The defendant contends that the evidence is insufficient to support his conviction because the state offered no proof that the result of his breathalyzer test was accurate. We affirm the judgment of the trial court.