Paul Rector v. Elizabeth Halliburton M1999-02802-COA-R3-CV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: Hamilton V. Gayden, Jr.
The residence owned by Mrs. Halliburton had no access owing to highway construction. She acquired a driveway easement from the adjoining landowner, who later sold the property to Mr. Rector. An electric service line extended across the front of Mr. Rector's property which was relocated. Mr. Rector's efforts to purchase the Halliburton property were unavailing, and he began a policy of harassment presumably to acquire the property. He claimed, inter alia, that the easement terminated because it was improperly maintained, and that NES moved the service line without his permission and hence was guilty of trespass. Mrs. Halliburton filed a counterclaim for damages, charging Mr. Rector with trespass and outrageous conduct. Mr. Rector's suit was dismissed, and the counterclaim of Mrs. Halliburton was sustained. The dismissal of Mr. Rector's suit is affirmed; the award of attorney fees to Mrs. Halliburton is reversed; the case is remanded for a determination of the damages sustained by Mrs. Halliburton, including punitive damages.
Davidson
Court of Appeals
Deborah Griffin v. Ace USA W2002-01433-WC-R3-CV
Authoring Judge: John K. Byers, Sr. J.
Trial Court Judge: Joe C. Morris, 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 trial court found the plaintiff had sustained a 4 percent permanent partial impairment to her body as a whole as a result of an injury to her left arm,1 which aggravated a previous impairment to her right arm. The employer appeals the trial court's judgment. The employer contends that the plaintiff's injury was to a scheduled member, not to the body as a whole, and that the evidence did not preponderate in favor of the amount of the trial court's award. We conclude that the plaintiff may recover only for the injury to her left arm, a scheduled member, and we modify the plaintiff's award to 5 percent permanent partial disability to the left arm. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Chancery Court Affirmed as Modified and Remanded JOHN K. BYERS, SR. J., in which JANICE M. HOLDER, J. and JOE C. LOSER, SP. J., joined. P. Allen Phillips, Jackson, Tennessee, for the appellant, Ace USA. Jack Manhein, Jr., Jackson, Tennessee, for the appellee, Deborah Griffin. MEMORANDUM OPINION At the time of trial, the plaintiff, who is married and is the mother of a child, was forty years of age. She has a twelfth-grade education. The plaintiff's work history is, for the most part, that of 1 The trial judge and the testifying physicians refer to the plaintiff's injuries as being to the "upper extremities." However, the Workers' Compensation Act refers to "arms." a food service worker. In 1991, the plaintiff's right arm was broken in an automobile accident. The accident was not job-related. As a result of that injury, the plaintiff has a metal plate in her right arm. On March 22, 2, the plaintiff received a work-related injury to her left ring finger, resulting in amputation of the finger, for which she received compensation based upon a 25 percent loss of use of her left arm. On March 14, 21, while working as a crust stacker for the defendant, the plaintiff's left arm was caught by mechanical flippers on a production line. Her radius and ulnar bones were severely fractured. The plaintiff testified that as a result of the left arm injury she is unable to bend her wrist, that she cannot perform household chores because of the loss of grip, that her left arm is weaker, and that she has pain in her left arm. She further testified that as a result of the injury to her left arm she has to use her right arm more often, which has caused her right shoulder to hurt. The physician who was treating the plaintiff's arm fracture released her to return to work on July 1, 21, without any restrictions. However, the plaintiff was still under restrictions as a result of the March 2 injury. The plaintiff was doing a light-duty job at the time of trial. On July 21, 21, the plaintiff submitted a resignation letter to Aurora Foods, Inc. The plaintiff reported to Aurora that she resigned because she was having pain in both of her arms due to the two accidents she had while working at Aurora. The trial court found that the plaintiff's injury to her left arm aggravated and exacerbated the prior injury to her right arm, resulting in a 4 percent permanent partial disability to the body as a whole. Medical Evidence Dr. W. Randolph Fly, an orthopedic surgeon, saw the plaintiff immediately after the left arm injury2 and performed surgery that consisted of opening the arm and placing plates on the broken bones. Dr. Fly continued to see the plaintiff over a period of several weeks and testified that she progressed normally in the healing process, which included pain and weakness in her arm during the time of treatment. Dr. Fly stated on May 8, 21, that the plaintiff could return to work with restrictions of no lifting over 5 to 1 pounds, no fine manipulation with her left hand, and limited hours of work. On July 1, 21, Dr. Fly found that she had reached maximum medical improvement. He fixed no restrictions on her as a result of the injury to her left arm. He testified the previous restrictions for the injury to her fingers were still in effect. Dr. Fly testified he only 2 Dr. Fly's notes on the date of the plaintiff's injury indicate that the plaintiff reported pain in her left shoulder. Th ere wa s no furth er me ntion o f left should er pa in by D r. Fly. -2-
Madison
Workers Compensation Panel
Ray Dunnagan v. Foamex W2001-03076-SC-WCM-CV
Authoring Judge: Joe C. Loser, Jr., Sp. J.
Trial Court Judge: Joe C. Morris, 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 insists (1) the action is time barred, (2) the evidence preponderates against the trial court's finding that the employee's restrictive lung disease was caused by exposure to silica at work and (3) the award of permanent partial disability based on 65 percent to the body as a whole is excessive. 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 JANICE M. HOLDER, J., and W. MICHAEL MALOAN, SP. J., joined. Joseph M. Crout, Memphis, Tennessee, for the appellant, Foamex Ricky L. Boren, Jackson, Tennessee, for the appellee, Ray Dunnagan MEMORANDUM OPINION The employee or claimant, Ray Dunnagan, initiated this civil action on April 5, 21 to recover workers' compensation benefits for an alleged occupational disease resulting from exposure to chemicals at work. By its answer, the employer denied liability. After a trial on the merits, the trial court resolved the issues in favor of the employee, awarding, among other things, permanent partial disability benefits based on 65 percent to the body as a whole. 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) (21 Supp.). The reviewing court is required to conduct an independent examination of the record to determine where the preponderance of the evidence lies.
Madison
Workers Compensation Panel
Ronnie Lee Houck v. State of Tennessee E2002-00642-CCA-R3-PC
Authoring Judge: Judge J. Curwood Witt, Jr.
Trial Court Judge: Judge Richard R. Baumgartner
The Knox County Criminal Court denied petitioner Ronnie Lee Houck post-conviction relief following an evidentiary hearing. The petitioner challenged his 2000 conviction of aggravated sexual battery on the grounds that his guilty plea to that offense was unknowing and involuntary and the product of ineffective assistance of counsel. From the denial of post-conviction relief, the petitioner appeals. We find no error and affirm the lower court's judgment.
Knox
Court of Criminal Appeals
Ronnie Lee Houck v. State of Tennessee E2002-00642-CCA-R3-PC
Authoring Judge: Judge J. Curwood Witt, Jr.
Trial Court Judge: Judge Richard R. Baumgartner
The Knox County Criminal Court denied petitioner Ronnie Lee Houck post-conviction relief following an evidentiary hearing. The petitioner challenged his 2000 conviction of aggravated sexual battery on the grounds that his guilty plea to that offense was unknowing and involuntary and the product of ineffective assistance of counsel. From the denial of post-conviction relief, the petitioner appeals. We find no error and affirm the lower court's judgment.
Knox
Court of Criminal Appeals
Henry Watson vs. L.B. Ball E2002-00072-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Jerri S. Bryant
A Chancery Court judgment was entered in 1980, providing Henry Watson and Evelyne Watson ("the Watsons") an easement across land currently owned by L.B. Ball and Wilma Rose Ball ("the Balls"). The judgment held the Watsons had acquired an easement "for the purpose of providing ingress and egress for farm equipment only and for no other purpose." The Watsons did not use the easement or take any steps to prepare it for use for nearly twenty years. In 1999, the Watsons began construction of a road within the easement. Joe Browder and Gail Browder ("the Browders"), owners of adjoining property, placed a gate across the easement. The Watsons sued for injunctive relief. Trial was held and an order was entered on May 14, 2001, holding, inter alia, the easement had not been abandoned and that the Balls were not entitled to damages for destruction of trees within the easement. In response to the Balls' motion for additional findings of fact, an order was entered on November 13, 2001, that provided a definition of "farm equipment." The Balls appeal. We affirm.
Polk
Court of Appeals
Cathy Anderton v. Gerald Anderton M1998-00950-COA-R3-CV
Authoring Judge: Judge William C. Koch, Jr.
Trial Court Judge: Don R. Ash
Rutherford County -The trial court awarded rehabilitative alimony to wife who, in her complaint, did not seek alimony but who testified at discovery that she was indigent and needed financial assistance. Husband argues that absent a pleaded request for alimony, the trial court was powerless to award it. The trial court disagreed. We affirm. Husband's petition alleging that wife was in criminal contempt for failing to allow visitation with the child of the parties was dismissed, and husband appeals. An acquittal of criminal contempt cannot be appealed.
Rutherford
Court of Appeals
Stephanie Marie Stephens v. Bekaert Steel Wire W2002-00341-WC-R3-CV
Authoring Judge: John K. Byers, Sr. J.
Trial Court Judge: Martha B. Brasfield, 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 trial court found the plaintiff sustained an 8 percent permanent partial disability to the body as a whole as a result of an industrial injury while employed by the defendant.1 The defendant says the plaintiff cannot recover because the plaintiff had a previous injury which was aggravated by the accident, and further says the award is excessive. The medical evidence, however, shows the plaintiff suffered a new and distinct injury. Furthermore, we do not find the evidence preponderates against the finding of the trial judge regarding the amount of the award. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Chancery Court Affirmed JOHN K. BYERS, SR. J., in which JANICE M. HOLDER, J. and JOE C. LOSER, SP. J., joined. Paul C. Peel, Memphis, Tennessee, for the appellants, Bekaert Steel Wire Corporation and Liberty Mutual Insurance Company. Jeffrey A. Garrety and Joseph R. Taggart, Jackson, Tennessee, for the appellee, Stephanie Marie Stephens. MEMORANDUM OPINION 1 The trial judge ordered a 6 percent set-off against the award because of payment of long-term disability benefits on an insurance policy paid for by the defendant. There is no appeal on this matter. At the time of trial the plaintiff, the mother of five children, was twenty- nine years of age. She has a high school education and has performed manual labor during most of her adult life. In 1995, the plaintiff received an injury to her back from which she had a 9 percent anatomical impairment and received an award of 19 percent to the body as a whole for the injury. On January 11, 2, the plaintiff fell and injured her back in the course of working for the defendant. The plaintiff testified that as a result of the 2 injury she has constant low back pain which increases with activity, burning pain in her back, and pain and numbness in her legs. She also testified that the injury has affected her ability to carry out her daily activities at home. The plaintiff does several exercises on a daily basis and walks as recommended by her doctor. The work that the plaintiff did for the defendant required lifting, standing and twisting. The plaintiff testified that she is no longer able to do this because of her injury. Medical Evidence Dr. Stephen M. Waggoner, an orthopedic surgeon, saw the plaintiff on February 24, 2, on referral from Dr. Riley Jones, who had been seeing the plaintiff since her 2 injury. Dr. Waggoner found the plaintiff had a pre-existing spondylolisthesis at the L5-S1 level which had been aggravated by the work injury. After a period of treatment, Dr. Waggoner did surgery on the plaintiff and placed a "cage" in the area of the injury to immobilize the vertebra. He testified the need for surgery was caused by the fall of 2. He testified that the fall of 2 caused new symptoms which led him to do surgery on the plaintiff's back. He testified the surgery produced new anatomical changes on the plaintiff's back. Dr. Waggoner testified the plaintiff now has limitations on a permanent basis that she did not have before the injury of January 2. He further testified the plaintiff now had permanent restrictions which she did not have prior to the injury of January 2. Dr. Waggoner placed limitations on lifting and prohibited repetitive bending or stooping. He found the plaintiff suffered a 13 percent anatomical impairment as a result of the January 2 injury. Dr. Joseph C. Boals, III, an orthopedic surgeon, saw the plaintiff in April 21, for the purpose of evaluation. Dr. Boals, for the most part, confirmed Dr. Waggoner's findings as to causation and effect. He was of the opinion that the plaintiff suffered a 23 percent impairment to the body as a whole. Dr. Boals was also of the opinion that the injury of January 2 was a new injury and that the plaintiff suffered new pain and new disablement from the injury. Brenda Dailey, a vocational rehabilitation expert, testified that she examined the medical evidence concerning the plaintiff's injury, her physical imitations, her education, etc., and concluded the plaintiff could perform between 1 and 12 percent of the jobs available in the country. -2-
The defendant contends the trial court erred in denying her judicial diversion and full probation following her guilty plea for identity theft, a Class D felony. The trial court sentenced her to two years in split confinement, with ninety days to be served in weekend confinement, and the balance served on probation. The trial court ordered the defendant to pay one thousand dollars ($1000) in restitution. Because the trial court failed to place its findings on the record, we remand for a new sentencing hearing.
The petitioner, Edward Dean Mullins, appeals the trial court's denial of post-conviction relief. The issues presented for review are (1) whether the petitioner was denied the effective assistance of counsel; (2) whether the petitioner's guiltypleas were knowingly and voluntarily entered; (3) whether the trial court erred by denying the petitioner's claim of prosecutorial misconduct; (4) whether the trial court erred by denying the petitioner's motion for severance; and (5) whether the trial court erred by ruling that the indictment need not include the applicable aggravating circumstances. The judgment is affirmed.
The petitioner, Edward Dean Mullins, appeals the trial court's denial of post-conviction relief. The issues presented for review are (1) whether the petitioner was denied the effective assistance of counsel; (2) whether the petitioner's guilty pleas were knowingly and voluntarily entered; (3) whether the trial court erred by denying the petitioner's claim of prosecutorial misconduct; (4) whether the trial court erred by denying the petitioner's motion for severance; and (5) whether the trial court erred by ruling that the indictment need not include the applicable aggravating circumstances. The judgment is affirmed.
The defendant, Stacy R. Dowell, appeals as of right his conviction, following a bench trial before the Johnson County Criminal Court, for driving while his blood alcohol concentration was .10 or greater, a Class A misdemeanor. The trial court sentenced the defendant to eleven months, twenty-nine days with forty-eight hours to be served in the county jail and the remainder on probation. The defendant challenges the sufficiency of the evidence relative to his blood alcohol concentration. We affirm the trial court's judgment.
The defendant, Stacy R. Dowell, appeals as of right his conviction, following a bench trial before the Johnson County Criminal Court, for driving while his blood alcohol concentration was .10 or greater, a Class A misdemeanor. The trial court sentenced the defendant to eleven months, twenty-nine days with forty-eight hours to be served in the county jail and the remainder on probation. The defendant challenges the sufficiency of the evidence relative to his blood alcohol concentration. We affirm the trial court's judgment.
The Defendant, Dena Paulette Rackliff, was found guilty by a jury of falsely accusing her ex-husband of sexually abusing their seven-year-old daughter, which constitutes a class E felony. The trial court sentenced the Defendant as a Range I offender to eighteen months in the Robertson County jail. The trial court further ordered that after the Defendant served ten days in jail, her sentence would be probated for six years. The Defendant presents three issues in this appeal as of right: (1) whether the evidence is sufficient to support the conviction for falsely reporting child sexual abuse; (2) whether the trial court erred in instructing the jury on the conduct that constitutes the crime of falsely reporting child sexual abuse; and (3) whether the sentence imposed by the trial court is excessive. We affirm the judgment of the trial court.
The Defendant, Gregory Lamont Jordan, brings this appeal from the trial court's denial of post-conviction relief. The Defendant pled guilty to aggravated robbery and possession of a weapon. In this appeal, he argues that he was denied the effective assistance of counsel during the course of his plea. We affirm the judgment of the trial court.
The Defendant, Rolando Rosas Contreras, was convicted by a jury of three counts of aggravated rape and two counts of aggravated assault. After a sentencing hearing, the Defendant was sentenced as a violent offender to twenty-five years for each of the three rape convictions, and he was sentenced as a Range I standard offender to six years for each of the two convictions for aggravated assault. The trial court ordered all sentences to be served concurrently for a total effective sentence of twenty-five years. In this direct appeal, the Defendant argues that the evidence presented at trial is insufficient to support his convictions and that the trial court erred by sentencing him to an effective sentence of twenty-five years. We affirm the convictions and modify the sentence imposed by the trial court.
The defendant, Michael Kennedy, pled nolo contendere to numerous burglary, theft and vandalism charges in Chester and Henderson Counties. He received an effective sentence of fifteen years. The cases were consolidated at the trial level and on appeal. Pursuant to the plea agreement reserving a certified question of law, the defendant contends the trial court erred in denying his motion to suppress items found during an illegal search. We conclude that we do not have jurisdiction as to three of the cases in Henderson County because the certified question of law is not dispositive of these cases. We affirm the remaining judgments of the trial court.
The appellant, William Roy Gray, was convicted in the Circuit Court of Madison County of possession of drug paraphernalia, a Class A misdemeanor, and resisting arrest, a Class B misdemeanor. The trial court sentenced the appellant to eleven months and twenty-nine days in the county jail and imposed a one hundred fifty dollar fine ($150) for the possession of drug paraphernalia conviction and six months in the county jail for the resisting arrest conviction. The trial court ordered the sentences to be served consecutively. On appeal, the appellant contends that the trial court erred in denying the appellant's motion to suppress, in failing to consider certain mitigating factors when sentencing the appellant, and in ordering the appellant to serve his sentences consecutively. After a review of the record and the parties' briefs, we affirm the judgments of the trial court.
The defendant entered guilty pleas to aggravated assault, A misdemeanor theft of services, E felony vandalism, and two counts of aggravated burglary. For these offenses the defendant received an agreed upon effective sentence of six years with the manner of service to be determined at a subsequent sentencing hearing. At the conclusion of this hearing, the trial court denied the defendant alternative sentencing. Through the instant appeal the defendant contests this denial. However, after reviewing the record and relevant authorities, we find that the defendant waived this issue and that, even if not waived, the claim lacks merit. We, therefore, affirm the trial court's action
The defendant, Gregory Pierce, pled guilty to attempted rape of a child, and the trial court accordingly sentenced him to serve eight years as a Range I standard offender for that conviction. After conducting a hearing, the trial court denied the defendant's request for alternative sentencing based upon the defendant's pre-sentence report, which includes a risk assessment evaluation outlining the defendant's potential to re-offend. The defendant now appeals the trial court's denial of his alternative sentencing request, arguing that the denial was improperly based on his polygraph results. After reviewing the record, we find that the trial court acted properly and accordingly affirm the defendant's sentence.
Sullivan
Court of Criminal Appeals
Precision Electric vs. State E2002-01340-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Mattielyn B. Williams
This litigation arises out of an accident involving a truck owned by Precision Electric Company, Inc. ("the Claimant") and a vehicle owned by the State of Tennessee ("the State"). The Claimant filed a claim against the State with the Tennessee Claims Commission, seeking compensatory damages of $19,845 for, inter alia, the diminution in value of the Claimant's vehicle and a loss of net profits. The case was tried before an Administrative Law Judge ("the ALJ"). The ALJ awarded the Claimant $2,217 for a wrecker bill and certain interest charges, but declined to award the remaining elements of damages sought, finding that the Claimant had failed to carry its burden of proof with respect to these latter damages. On appeal, the Claimant argues that the ALJ erred in refusing to award the full amount of damages sought by it. We affirm.
A Robertson County jury convicted the Appellant, Tim D. Gardner, of possession of over 300 grams of cocaine, with intent to sell, a class A felony. Gardner raises one issue for our review: whether the evidence was sufficient to support his conviction. After review, we conclude that the proof is sufficient. Accordingly, the judgment of conviction is affirmed.
Robertson
Court of Criminal Appeals
In the Matter of: CAF M2002-00516-COA-R3-JV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: Nolan R. Goolsby
The trial court terminated the parental rights of the mother and the biological father of a three-year-old girl. It ruled, however, that there were no legal grounds to terminate the parental rights of another man who had signed a voluntary acknowledgment of paternity, but who admitted that he was not the actual father. We affirm the trial court's actions as to the child's biological mother and father, but reverse as to the other respondent.
Putnam
Court of Appeals
Amy Butler v. Michael Butler M2002-00347-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Muriel Robinson
The mother of a minor child, as custodial parent, appeals the action of the trial court in denying her application to relocate with the child from the Nashville area to the Dallas-Ft. Worth, Texas area pursuant to Tennessee Code Annotated section 36-6-108(d). We affirm the action of the trial court.
John A. Carter, Sr., was tried and acquitted of second-degree murder in the Davidson County Criminal Court for the stabbing death of Simon Doig; he was convicted of the lesser-included offense of reckless homicide. At the subsequent sentencing hearing, the trial court imposed a mid-range, three-year sentence. Carter claims in this appeal that the court should have given him a minimum, two-year sentence. Because we find no error in the trial court's sentencing pronouncement, we affirm.
