The petitioner, Teron McKenley, appeals the denial of his petition for post-conviction relief. He originally pled guilty to especially aggravated robbery, aggravated burglary, and theft over $1,000 and received an effective sentence of fifteen years. He contends the post-conviction court erred in disallowing the introduction of the victim's medical records at his post-conviction hearing and in failing to find that ineffective assistance of counsel led to an involuntary guilty plea. We affirm the judgment of the post-conviction court.
The Defendant was convicted, along with her co-defendant husband, of child abuse and neglect, a Class D felony, and sentenced to four years probation. She appeals, claiming that the evidence was insufficient to support her conviction and that any neglect that did occur was the result of mistakes in parenting skills, such mistake vitiating any knowing abuse. We affirm the judgment of the trial court.
Grundy
Court of Criminal Appeals
James R. Blue v. State of Tennessee M2002-00383-CCA-R3-PC
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Seth W. Norman
The Petitioner pled guilty to three Class B felony drug offenses. Pursuant to the plea agreement, the trial court orally sentenced the Petitioner to ten years for each conviction with the sentences to be served concurrently to each other and to a prior four-year sentence, resulting in an effective sentence of ten years. After the sentence was imposed, the Petitioner asked that he be allowed to begin serving his sentence the following day. The trial court granted the Petitioner's request, with the condition that if he did not report as ordered, two of the sentences would run consecutively. The next day, the Petitioner failed to report, and the trial court entered judgments in which two of the Petitioner's sentences were consecutive, resulting in an effective sentence of twenty years. The Petitioner filed a petition for post-conviction relief, contending that his plea was unlawfully induced, that he received ineffective assistance of counsel, and that his sentences were illegal. Following a hearing, the post-conviction court denied relief. The Petitioner now appeals, arguing that the post-conviction court erred by denying his petition for post-conviction relief. Concluding that the trial court violated Tennessee Rule of Criminal Procedure 11 and the Petitioner's due process rights, we reverse the judgment of the post-conviction court.
Davidson
Court of Criminal Appeals
Whirlpool Corporation v. James Neville M2002-00187-WC-R3-CV
Authoring Judge: Byers, Sr.J.
Trial Court Judge: Ellen Hobbs Lyle, 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. The plaintiff (employer) appeals the trial court's decision that the disc herniation in the defendant's (employee's) neck, resulting in cervical radiculopathy, was a gradually occurring injury that arose out of and in the course of his employment with the plaintiff. The plaintiff also appeals on the grounds that it contends that proper notice was not given and that the claim should have been barred by the statute of limitations. We affirm the decision of the trial court. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Chancery Court is Affirmed BYERS, SR.J., in which DROWOTA, J., and LOSER, SP.J., joined. David T. Hooper, of Brentwood, Tennessee, for the Appellant, Whirlpool Corporation. Jerry D. Mayo, of Nashville, Tennessee, for the Appellee, James Neville. 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 finding, 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). Facts The defendant (employee) was fifty-three years of age at the time of trial. He did not finish high school, but instead earned his graduate equivalency degree. He has also taken classes in mechanical engineering, electrical engineering , hydraulics, and pneumatics. He served as a policeman in Marinette, Wisconsin, for ten years before coming to Tennessee in 1981. His first job in Tennessee was as a maintenance technician and it was in this position that he came to work for the plaintiff company. The defendant's duties included repair work on a monorail and plumbing maintenance. He testified that most of his duties with the plaintiff company involved plumbing and the use of small tools. The defendant testified that he developed carpal tunnel syndrome out of his work with the plaintiff company and had carpal tunnel release surgery performed by Dr. Vaughan Allen on both hands in 1994. In 1995, he was released with a permanent restriction to avoid continuous flexion and extension of the wrists as well as repetitive work or lifting any objects over thirty-five pounds. He filed a claim for workers' compensation and that claim was settled in 1995 for 27.75 percent permanent disability to both arms and open future medical benefits. The defendant testified that he continued to have hand and arm pain over the following years and was treated for this pain with cortisone shots. The defendant also testified that in the early 199's he had had minor pain in his neck that came and went. He testified that on August 8, 1995, while trying to pull cables on a flat conveyor, he injured his neck but did not report this injury to his supervisor. On March 17, 1999, he reported to Employee Health regarding neck pain and he was treated there with heat on his neck. He testified that on April 24, 1999, while assembling and replacing heavy duty racks, he heard a loud pop and snap in his neck followed by excruciating pain. He testified that the next day his neck hurt very bad. This occurred over a weekend when Employee Health was closed, so he did not report the injury until the following Monday, during which time he continued to work. The defendant testified that he saw Dr. Allen on June 22, 1999, and told him of the neck pain he was having. Dr. Allen performed an MRI (magnetic resonance image) and then recommended surgery to the defendant's neck. Dr. Allen performed surgery on July 15, 1999. The defendant reported that the surgery relieved all his neck and shoulder pain. He returned to work on October 4, 1999, with no restrictions for his neck but still with the prior restrictions for his wrists and hands. After returning to work, he continued to have problems with his arms, wrists, and hands, and these problems got progressively worse. Dr. Allen suggested that the pain was probably caused by tendinitis, but the defendant elected to again have surgery on both wrists and these surgeries were performed in January and February of 2. Medical Evidence The medical evidence for the purposes of the issues raised in this trial was presented by the deposition of Dr. Vaughan Allen. Dr. Allen, a board-certified neurological surgeon, testified that -2-
Davidson
Workers Compensation Panel
Larry Benton v. Vanderbilt University M2002-00085-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Carol L. Soloman
This is a case of first impression regarding the enforceability of an arbitration agreement against a third party. The plaintiff was a passenger in an automobile accident and was treated at the defendant hospital. The hospital filed a statutory hospital lien against any proceeds the plaintiff might recover in any lawsuit arising out of the car accident. The plaintiff later successfully sued the tortfeasor for the injuries he sustained in the accident. Thereafter, the hospital sought to recover under its lien for the balance of the plaintiff's medical bills that were not paid to the hospital by the plaintiff's insurance carrier. The plaintiff filed this action against the hospital, claiming that the hospital's practice of balance billing violates the institution agreement between the hospital and the plaintiff's insurance carrier. The hospital filed a motion in the trial court to compel arbitration, pursuant to an arbitration provision contained in the institution agreement. The trial court denied that motion. The hospital now appeals the denial of its motion to compel arbitration. We reverse, concluding that the plaintiff, a third-party beneficiary to the institution agreement seeking to enforce his rights under that agreement, is bound by the arbitration provision contained within that agreement.
Davidson
Court of Appeals
Rodney Johnson v. James Gulley W2002-02357-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Robert A. Lanier
The defendant, Bruce Marvin Vann, was convicted of aggravated assault. The trial court imposed a six-year sentence. In this appeal of right, the defendant presents five issues for review: (1) whether the indictment sufficiently described the offense of aggravated assault; (2) whether the evidence was sufficient; (3) whether the trial court erred by failing to act as thirteenth juror; (4) whether the trial court erred by allowing prior convictions as impeachment evidence; and (5) whether the trial court erred by refusing to apply a mitigating circumstance. The judgment is affirmed.
McMinn County vs. Ocoee Environmental E2002-00702-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: John B. Hagler, Jr.
This appeal questions the validity of a resolution enacted by Appellant McMinn County imposing a surcharge for solid waste disposal at all Class I landfills located in McMinn County. The resolution as initially passed imposed a surcharge of $4.00 per ton of waste, and was subsequently reduced by McMinn County to $2.75 per ton. Appellee Environmental Trust Company ("ETC"), which owns one of the two landfills in the county, refused to pay the surcharge, asserting that it was actually an unlawful tax. McMinn County filed this action to require ETC to pay the surcharge. The Trial Court held that the resolution imposed an unlawful tax, and granted summary judgment in favor of ETC. We affirm the judgment of the Trial Court.
A Blount County Circuit Court jury convicted the defendant, Anthony Pfahler, of especially aggravated robbery, a Class A felony, and aggravated assault, a Class C felony. The trial court sentenced him as a Range II, violent offender to thirty-five years in the Department of Correction (DOC) for the especially aggravated robbery conviction and as a Range II, multiple offender to eight years for the aggravated assault conviction to be served consecutively. In this delayed appeal, the defendant claims (1) that the evidence is insufficient to support his especially aggravated robbery conviction; (2) that the trial court erred by denying his attorney's motion to withdraw; and (3) that his sentences are excessive. We affirm the judgments of the trial court.
Blount
Court of Criminal Appeals
Ann Utter vs. Howell H. Sherrod, Jr. E2002-00848-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Kindall T. Lawson
Howell H. Sherrod, Jr. ("Defendant") and Jerry A. Mooneyhan ("Dr. Mooneyhan") were partners. Defendant sued Dr. Mooneyhan regarding one of their partnership projects, Quality Dental Products. Dr. Mooneyhan died during the pendency of that matter. That suit resulted in a jury verdict for Dr. Mooneyhan that was affirmed on appeal. After the Quality Dental Products suit, Defendant withheld Dr. Mooneyhan's portion of the rents from another partnership property, the Bristol building. Ann Utter (formerly Mooneyhan) as Executrix of the Estate of Jerry A. Mooneyhan, deceased ("Plaintiff"), sued Defendant in chancery court seeking partition of the Bristol building and an accounting as to another partnership business, World Tech Fibers. Defendant claimed the chancery court lacked jurisdiction because he previously had filed a claim against the estate in probate court, which, Defendant argued, caused jurisdiction to be vested solely in the probate court. The Trial Court determined it had jurisdiction over the partition action and issues relating only to the Bristol building and World Tech Fibers. The Trial Court ordered and then confirmed partition by sale, awarded Plaintiff a judgment for certain sums related to the Bristol building and World Tech Fibers, and awarded Defendant a winding up fee as the surviving partner. Defendant and Plaintiff each appeal. We affirm in part, reverse in part, and remand.
Washington
Court of Appeals
Alice Beason vs. C.A.Beason E2002-01425-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Daryl R. Fansler
These appeals involve an equitable distribution of the Tier II railroad retirement benefits of C.A. Beason ("Husband"). When Alice Beason ("Wife") and Husband were divorced the first time in 1989, Wife admittedly made no claim for any of Husband's Tier II benefits and was awarded none. The parties then remarried in 1992 and were divorced for the second time in 1996. A Qualified Domestic Relations Order ("QDRO") eventually was entered in the second divorce which awarded Wife 100% of Husband's Tier II benefits. After Husband became disabled, Wife began receiving all of his Tier II benefits which had accumulated during Husband's 31 years of employment with the railroad. Husband claims he then realized for the first time the true effect of the QDRO and filed a Tenn. R. Civ. P. 60.02(5) motion seeking relief from the judgment. Husband's Rule 60.02(5) motion was granted and the Trial Court entered a new QDRO awarding Wife only 100% of the Tier II benefits which had accrued during the second marriage. Wife then sought relief by Rule 60.02(5) from the judgment entered in the first divorce in 1989, asking that Trial Court to award her an equitable distribution of the Tier II benefits which had accrued during the first marriage. Wife's motion was denied. Wife appeals both decisions. On appeal, we affirm the Trial Court's decision to grant Husband relief from the judgment in the second divorce, and we also affirm the Trial Court's refusal to grant Wife relief from the judgment in the first divorce.
Carroll Clabo vs. Great American Resorts vs. Jim Falin E2002-01008-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Rex Henry Ogle
Carroll Clabo and wife, Blanche Clabo; Dorothy Reed and husband, Earl Reed; Edna Myers and husband, Jerry Myers; and Kate Clabo and husband, Junior Clabo ("Plaintiffs") and Great American Resorts, Inc. ("Defendant") own neighboring properties in Gatlinburg, Tennessee. Defendant developed its property and during construction altered the natural drainage causing rainfall to be diverted onto Plaintiffs' properties. The diverted water caused a landslide that destroyed the access roadway to Plaintiffs' properties and caused damage to Carroll and Blanche Clabo's house. The Trial Court found a permanent nuisance existed and awarded all Plaintiffs damages for diminution in value and $10,000 for the damage to Carroll and Blanche Clabo's house. Defendant appeals claiming the Trial Court erred in finding a permanent nuisance. We affirm.
Sevier
Court of Appeals
Charles Woods vs. Angelika Woods E2001-02461-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: John S. Mclellan, III
In this post-divorce case, Charles Grady Woods, acting pro se, appeals the Trial Court's orders finding him in contempt of court and awarding his former wife, Angelika Mazur Woods, certain sums which the Court found due and owing under the final decree of divorce. We affirm the judgment of the Trial Court.
The petitioner appeals the denial of post-conviction relief from his conviction for voluntary manslaughter, arguing that the post-conviction court erred in finding that his guilty plea was knowing and voluntary and that he received the effective assistance of trial counsel. Following our review, we affirm the denial of the petition.
Hawkins
Court of Criminal Appeals
Willard Malone vs. Judy Malone E2002-01257-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: G. Richard Johnson
In this post-divorce case, Willard Eugene Malone (Husband) filed a motion requesting the Trial Court to decrease or discontinue his alimony payments to Judy Mae Bishop Malone (Wife). The sole basis for the motion was Husband's allegation that Wife "is cohabiting with a third person . . .and is no longer in need of the alimony paid by [Husband]." Wife denied that a reduction or elimination of alimony was appropriate, alleging that the person who had lived with her did not provide her financial support or contribution, and that he no longer lived in her trailer at the time of her answer. Wife also alleged that she remained in need of the alimony payments. The Trial Court found no substantial material change in circumstances and ordered Husband to continue paying alimony in the amount of $1000 per month. Husband appeals. We affirm the judgment of the Trial Court.
State of Tennessee v. Alvin Carroll M2002-01012-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Robert E. Lee Davies
After being indicted for the sale of a controlled substance, the defendant filed an Affidavit of Indigency to obtain a court-appointed lawyer. The State dismissed the drug charges against the defendant and later charged the defendant with aggravated perjury, a Class D felony, regarding his answers to the trial court considering his request for a court-appointed lawyer. He was found guilty and sentenced as a Range I standard offender to two years in the Tennessee Department of Correction, with 180 days to serve and the balance on supervised probation. In this appeal, the defendant presents the following issues for review: (1) the evidence was insufficient to support the jury verdict; (2) the trial court erred in requiring the defendant to go to trial without an attorney; and (3) the trial court erred in sentencing the defendant. This is a case of first impression in Tennessee regarding an aggravated perjury conviction for making false statements to the trial court when requesting a court-appointed lawyer. We conclude the evidence is sufficient to sustain a conviction of aggravated perjury. We conclude the trial court did not err in requiring the defendant to go to trial without an attorney.
The defendant contends the trial court erred in sentencing him to eleven years for a Class B felony of selling a Schedule II controlled substance, instead of the presumptive minimum sentence of eight years. The defendant also contends the trial court erred in ordering his sentences to run consecutive to a sentence in another county. Absent a sentencing hearing transcript, we conclude the record is inadequate for appellate review, and we must presume the sentences imposed for the Class B felony are correct. Moreover, we note the judgment forms reflect the defendant was sentenced to eleven years on two additional Class C felony convictions of selling less than .5 grams of a Schedule II controlled substance. These sentences exceed the statutory range of punishment prescribed for Class C felonies and are illegal. We affirm the judgment from the trial court as related to the defendant's Class B felony convictions and remand the defendant's two Class C felony convictions for correction or for resentencing within the proper statutory range of punishment.
The petitioner, Richard Leonard Mendoza, appeals the denial of his petition for post-conviction relief, which alleged ineffective assistance of counsel in connection with his guilty pleas to aggravated sexual battery and that his guilty pleas were involuntary. Additionally, he insists that the post-conviction court erroneously denied funding for expert psychological services at the post-conviction level. After a thorough review of the record, we are unpersuaded that the post-conviction court's rulings, findings and conclusion are anything other than proper, and we affirm the judgment.
Davidson
Court of Criminal Appeals
Richard Lee v. City of Lavergne M2001-02098-COA-R3-CV
Authoring Judge: Sr. Judge Allen W. Wallace
Trial Court Judge: Robert E. Corlew, III
The cause was heard by the Chancery Court for Rutherford County, on a petition for Writ of Certiorari. The Chancellor remanded the case and ordered the City of LaVergne to provide plaintiff a hearing before the City Administrator. The City appealed. We find the appellee was an at will employee, and as such, has no property interest in his job. Therefore, a due process claim is inapplicable. Appellee relies upon the City of LaVergne Employee Manual. The Manual does not contain clear and binding language to create a contract of employment, and does not create any property rights in appellee. Therefore, the judgment of the Chancellor is reversed.
