The Bank/First Citizens Bank, v. Citizens and Associates, Allied Mortgage Capital Corp., Frieda Gray, and Henry Gray, A/K/A James Gray, First Tennessee Bank
E2000-02545-COA-R3-CV
Authoring Judge: Judge Herschel P. Franks
Trial Court Judge: Judge Russell E. Simmons, Jr.

Drawer of checks and Bank failed to exercise ordinary care in transactions under Tenn. Code Ann. §47-3-406. Drawer was assessed 80% of fault and Bank 20%. Drawer appeals. We affirm, as modified. 

The Bank/First Citizens Bank v. Citizens and Associates, et al. - Concurring/Dissenting
E2000-02545-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Russell E. Simmons, Jr.

I concur in so much of the majority opinion as holds that Citizens is precluded from raising an issue on appeal as to the dismissal of First Tennessee Bank. I disagree, however, with the majority’s conclusion that the facts do not preponderate against the trial court’s finding that Citizens was 80% at fault for the loss occasioned by Frieda Gray’s forgery. In my judgment, Citizens did not engage in negligent conduct that substantially contributed to the forgery, as that concept is embodied in T.C.A. § 47-3-406. Accordingly, I would hold that the Bank, who was clearly negligent in allowing checks made payable to a business to be deposited directly into an individual’s bank account, was 100% at fault for the loss.

Billy and Mary Milliken v. Crye-Leike Realtors, et al
M1999-00071-COA-R3-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: Judge Clara W. Byrd

The buyers of a new residence filed this action against the builder and their realtor after discovering that the house was defective. The claims against the realtor alleged negligent misrepresentation and violations of the Tennessee Consumer Protection Act based in part on the agent's representation that the builder was licensed. The jury, using a jury verdict form, found that the realtor had committed a deceptive act or practice prohibited by the Consumer Protection Act, but determined that the buyers had suffered no loss therefrom. The jury also found the realtor liable for negligent misrepresentation, calculated the damages resulting from the realtor's negligent misrepresentation, and apportioned fault at 10% to the buyers, 10% to the realtor, and 80% to the builder, a nonparty. On appeal, the buyers argue that the verdict was inconsistent and challenge the assessment of costs and the failure to award attorney fees. We affirm the verdict, the denial of attorney's fees, and the apportionment of court costs. We vacate the denial of discretionary costs and remand for determination of that issue.

Larry Niedergeses, et al v. Giles County, Tennessee
M2000-00428-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Judge Robert L. Holloway, Jr.

This case presents a tragic set of facts involving an automobile accident which occurred in Giles County on May 8 or 9, 1997, sometime between 11:15 p.m. and 12:15 a.m. Michael Niedergeses died as a result of this accident. His parents, Larry Niedergeses and Roberta Niedergeses, instigated this suit against Giles County alleging that the county's negligence in failing to maintain the bridge signage caused their son's accident and resulting death. The case was tried non-jury in the Circuit Court of Giles County. That court found Mr. Niedergeses fifty percent at fault and Giles County fifty percent at fault. Plaintiffs appeal this ruling asserting that the trial judge was in error and should have found Giles County more than fifty percent at fault. The appeal presents for review the question of "whether the evidence preponderated against the trial court's finding that John Michael Niedergeses was fifty percent at fault in the May 9, 1997 accident." We find that the evidence does not preponderate against the judge's findings and affirm the trial court's ruling.

State of Tennessee v. Christina Sue Libertus
M1999-01710-CCA-OT-CO
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge William Charles Lee

The Defendant pled guilty in 1999 to ten counts of forgery committed in Bedford County. Following a sentencing hearing, the trial court sentenced the Defendant as a Range II multiple offender to an effective sentence of six years, four months incarceration. In this direct appeal, the Defendant argues that she was improperly sentenced. Having reviewed the record, we conclude that the Defendant's sentence is appropriate and therefore affirm the judgment of the trial court.

William P. Livingston v. State of Tennessee, Board of Paroles
M1999-01138-COA-R3-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: Chancellor Carol L. Mccoy

Petitioner appeals the trial court's decision to deny his petition for common law writ of certiorari challenging a Board of Paroles decision to revoke his parole and the court's grant of Respondent's motion for summary judgment. Petitioner appeals the order on two grounds, (1) his due process rights were violated by the introduction of inadmissible evidence, and (2) these procedural flaws led to the hearing officer becoming biased and unable to conduct a fair and impartial hearing. For the reasons below, we find both claims without merit and affirm the trial court.

State of Tennessee v. Albert Eugene Pleasant
M1998-00653-CCA-R3-CD
Authoring Judge: Judge J. Curwood Witt, Jr.
Trial Court Judge: Judge Charles D. Haston, Sr.

The defendant, Albert Eugene Pleasant, appeals his Warren County Circuit Court jury conviction for first degree murder in connection with the shooting death of his girlfriend on June 9, 1996. In this direct appeal, he contests the sufficiency of the conviction evidence and challenges the admissibility of photographs of the victim taken post-mortem and of evidence of prior threats and physical abuse of the victim by the defendant. After a review of the record, the briefs of the parties, and the applicable law, we affirm the judgment of the trial court.

Dorothy Wilkins v. The Kellog Company
M1999-00676-SC-R3-CV
Authoring Judge: Justice Frank F. Drowota, III
Trial Court Judge: Judge John R. McCarroll, Jr.

This workers’ compensation case presents the question of how a “temporary partial disability”
benefits award, as defined in Tennessee Code Annotated section 50-6-207(2), is calculated. The trial court held that an award is calculated based on the employee’s “average weekly wage,” which is the measure of benefits for the other categories of disability listed in the Workers’ Compensation Law (“temporary total disability,” “permanent total disability,” and “permanent partial disability”). The employer appealed this decision to the Special Workers’ Compensation Appeals Panel. The case was transferred to the full Supreme Court before the Panel handed down its decision. We now reverse the trial court and hold that the express terms of the statute indicate that a temporary partial disability award has a unique method of calculation, based on “the difference between the wage of the worker at the time of the injury and the wage such worker is able to earn in such worker’s partially disabled condition.” Tenn. Code Ann. § 50-6-207(2). This method does not include the average weekly wage definition. Under the correct calculation, the plaintiff in this case is not entitled to any temporary partial disability benefits. The award of $3,258.20 is accordingly reversed and the cause remanded to the trial court. Appeal pursuant to Tenn. Code Ann. § 50-6-225(e); Judgment of the Circuit Court Reversed and Remanded.
 

Dorothy Wilkins v. The Kellog Company - Dissenting
M1999-00676-SC-R3-CV
Authoring Judge: Justice Adolpho A. Birch, Jr.
Trial Court Judge: Judge John R. McCarroll, Jr.

The majority holds that the difference between pre- and post-injury wages for an employee whose weekly wage fell from $1,433.82 to $860.80 is $0. This holding, in my view, contravenes legislative intent, creates the potential for abuse of the benefit scheme, and muddles benefit calculation. In order to more effectively promote the Worker’s Compensation Act’s intended objectives and clarify benefit calculation, I would define “wage” in the temporary partial disability provision to mean “average weekly wage,” not “hourly rate of pay.” Accordingly, I respectfully dissent.

Michael W. Clark v. State of Tennessee
M2000-02092-CCA-R3-PC
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge James K. Clayton, Jr.

The petitioner appeals the denial of his petition for post-conviction relief. Specifically, he asserts that he received ineffective assistance of counsel because trial counsel failed to inform him of charges against the victim of the crime. He claims that had he known about the charges against the victim, he would not have pled guilty. After review, we affirm the judgment of the post-conviction court.

State of Tennessee v. John Michael Bane
W1997-02158-SC-DDT-DD
Authoring Judge: Chief Justice E. Riley Anderson
Trial Court Judge: Judge John P. Colton, Jr.

The defendant, John Michael Bane, was convicted of felony murder in the perpetration of a
robbery for an offense committed in November of 1988. The jury originally imposed a sentence of
death after it found that evidence of two aggravating circumstances – (1) the murder was especially heinous, atrocious, or cruel in that it involved torture or depravity of mind and (2) the murder was committed during the perpetration of a felony – outweighed evidence of any mitigating factors. See Tenn. Code Ann. § 39-2-203(i)(5), (7) (1982). On appeal, this Court affirmed the conviction, but remanded for a new sentencing hearing because the jury’s application of the felony murder aggravating circumstance duplicated the offense of felony murder in violation of article I, section 16 of the Tennessee Constitution. See State v. Bane, 853 S.W.2d 483 (Tenn. 1993). After a new sentencing hearing, the jury again imposed a sentence of death after it found that evidence of two aggravating circumstances – (1) the murder was “especially atrocious or cruel in that it involved torture and depravity of mind” and (2) the murder was committed for the purpose of avoiding, interfering with, or preventing a lawful arrest or prosecution of the defendant or another –
outweighed evidence of any mitigating factors. See Tenn. Code Ann. § 39-2-203(i)(5), (6) (1982).

State of Tennessee v. John Michael Bane - Concurring/Dissenting
W1997-02158-SC-DDT-DD
Authoring Judge: Justice Adolpho A. Birch
Trial Court Judge: Judge John P. Colton, Jr.

I concur in the majority decision to affirm the conviction in this case. I continue to believe,
however, that the comparative proportionality review protocol embraced by the majority is
inadequate and fails to satisfy this Court’s duty, mandated by statute,1 to ensure that no death
sentence will be upheld unless it is proportionate to sentences imposed upon comparable defendants in similar cases. Because the protocol fails to provide convincing assurance that this defendant’s death sentence is proportionate, I cannot join the majority decision to impose the death penalty in this case.

State of Tennessee v. Mitchell Shephard
E2000-00628-CCA-R3-CD
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Judge R. Steven Bebb

A McMinn County jury convicted the defendant of first degree murder in perpetration of aggravated child abuse and, following a sentencing hearing, sentenced the defendant to life without the possibility of parole. In this appeal, the defendant alleges (1) the evidence was insufficient to sustain his conviction; (2) a juror was improperly dismissed for cause; (3) prejudicial statements were made by a juror during voir dire; (4) evidence of the defendant's prior criminal conduct was improperly admitted; (5) prejudicial photographs of the victim were improperly admitted; (6) the state improperly commented on the defendant's failure to testify; (7) the jury was improperly instructed concerning the definition of "knowingly;" (8) the trial court failed to properly instruct the jury on lesser-included offenses; (9) the trial court improperly imposed a life sentence without the possibility of parole due to inadequate notice by the state; (10) the jury was improperly instructed concerning the minimum length of a life sentence; and (11) the verdict forms failed to comply with the statutory requirements. Although we affirm the conviction, we find that the trial court improperly instructed the jury during the sentencing phase that the minimum length of a life sentence is twenty-five years. Accordingly, we remand this case to the trial court for a new sentencing hearing.

State of Tennessee v. Lee Roy Gass
E2000-00810-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge James E. Beckner

The appellant, Lee Roy Gass, was convicted by a jury in the Hamblen County Criminal Court of one count of aggravated rape, one count of burglary, and one count of official misconduct. The trial court sentenced the appellant as a Range I violent offender to twenty-two years incarceration in the Tennessee Department of Correction for the aggravated rape conviction and as a Range I standard offender to four years incarceration in the Department for the burglary conviction and to two years incarceration for the official misconduct conviction. The trial court ordered concurrent service of the appellant's sentences, resulting in an effective sentence of twenty-two years incarceration. In this appeal, the appellant presents the following issues for our review: (1) whether the evidence adduced at trial is sufficient to support his convictions; (2) whether the trial court erred in sustaining the State's objection to testimony by a defense witness concerning the victim's neighbor, Patricia Costner; (3) whether newly discovered evidence warrants the reversal of the appellant's convictions and the remand of this case for a new trial; and (4) whether the trial court erred in sentencing the appellant. Following a review of the record and the parties' briefs, we affirm the judgments of the trial court in the aggravated rape and burglary cases and affirm as modified the judgment in the official misconduct case.

Larry Robbins, v. City of Johnson City, Tennessee
E2000-02952-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Jean A. Stanley

This case involves the termination of Johnson City police officer, Larry Robbins. Dissatisfied with his department's handling of certain allegations of sexual harassment made by a secretary against officer Mike Lukianoff, Robbins authored an anonymous letter and sent it to each of the City Commissioners. The Chief of Police, who later learned of the letter, conducted an investigation. Robbins eventually admitted to writing the letter, to relating the allegations even though he had no personal knowledge of them, and to having a personal vendetta against the alleged harasser. The City terminated Robbins, primarily for conduct unbecoming an officer. Robbins appealed to the City Civil Service Commission, which upheld Robbins' termination. Robbins then appealed to the Washington County Chancery Court, which reversed the termination, but remanded for appropriate discipline. The City appeals the reversal of Robbins' termination, and Robbins appeals the remand for discipline. We find that the trial court erred in reversing the termination.

Marshall Key v. Savage Zinc, Inc.
M2000-00306-WC-R3-CV
Authoring Judge: James Weatherford, Sr., J.
Trial Court Judge: J.O. Bond, Judge
The defendant, Savage Zinc, Inc., appeals the judgment of the Criminal Court of Smith County where the trial court found Mr. Key to have a 14% anatomical impairment and awarded 35% permanent partial disability to the body as a whole for a work-related shoulder injury. For the reasons stated in this opinion, We affirm the judgment of the trial court.

Drew Davis v. Avron Truss Company, Inc.
E2000-00780-WC-R3-CV
Authoring Judge: John K. Byers, Sr. J.
Trial Court Judge: John A. Turnbull, Judge
The trial court found the fired plaintiff's return to work non-meaningful and awarded eighteen percent vocational disability. The plaintiff's misconduct was found irrelevant because he had not reached maximum medical improvement on the day he was fired. The trial court also awarded discretionary costs to the plaintiff. We find an employer may dismiss an injured employee for egregious misconduct, such as fighting with a fellow employee, regardless of the injured employee's medical status at the time of the misconduct. We therefore affirm the judgment of the trial court, but we modify the award to two and one-half times the impairment rating given by the employee's physician or fifteen percent. We also affirm the trial court's judgment fully with respect to discretionary costs.

Murray Carter v. Murray, Inc.
W2000-01261-WC-R3-CV
Authoring Judge: Joe C. Loser, Jr., Sp. J.
Trial Court Judge: Joe C. Morris, Chancellor
In this appeal, the employer contends the award of permanent partial disability benefits based on 35 percent to the arm is excessive and should be reduced to one based on 1 percent to the arm. As discussed below, the panel has concluded the judgment should be affirmed.

State of Tennessee v. Hollie D. Campbell
E2000-00373-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Lynn W. Brown

On appeal, the issue is whether a defendant, who pled guilty pursuant to a plea agreement that allowed for a request for judicial diversion, may be sentenced by the trial court to additional time over and above the negotiated plea agreement in the event the Defendant violates the terms and conditions of judicial diversion. We hold the answer to be yes. Further, after a careful review we conclude that the trial court properly sentenced the Defendant. The Defendant’s sentence is affirmed.

State of Tennessee v. Hollie D. Campbell - Concurring
E2000-00373-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt, Jr.

Respectfully, I must concur only in the results of the majority’s holding that the trial court was authorized to impose two-year sentences upon revocation of the judicial diversion probation, even though the parties’ plea agreement specified one-year sentences.

Vadalene Brewer v. Michael Dunn Center et al.
E2000-01298-WC-R3-CV
Authoring Judge: Judge John K. Byers
Trial Court Judge: Judge Frank V. Williams, III

This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated § 50-6-225(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 an injury to her left shoulder in the course and scope of her employment that resulted in 54 percent permanent partial disability. We affirm the judgment of the trial court.

State of Tennessee v. William Greer
M2001-00244-CCA-R3-CD
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge L. Craig Johnson

The Appellant, William Greer, was indicted on one count of theft of property under $500, one count of fraudulent use of a debit card, and one count of misdemeanor assault. Prior to trial, the assault charge was severed. A Coffee County jury found the Appellant guilty of one count of fraudulent use of a debit card, a class A misdemeanor. The Appellant was sentenced to ninety (90) days in the Coffee County jail. Greer appeals his conviction contending that (1) the evidence is insufficient to support his conviction and (2) the unsolicited comments of the victim relating to the Appellant's severed charge of assault resulted in reversible error. After review of the record and the applicable law, we affirm the judgment of the trial court.

Ronald Paul v. State of Tennessee
M2000-1653-CCA-R3-PC
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge John H. Gasaway, III

The Appellant, Ronald Paul, appeals the dismissal of his pro se petition for post-conviction relief by the Robertson County Circuit Court. Paul, a correctional inmate, timely delivered his petition to the proper prison authorities; however, he inadvertently addressed the envelope containing his petition to the wrong city. The petition was returned to Paul, who, on the same day, corrected his mistake and re-delivered to prison authorities for mailing. These events occurred one day after the one year period for filing had expired. On appeal, Paul argues that the trial court erred in finding his post-conviction petition timed-barred. After review, we hold that Paul's petition was deemed "filed" for purposes of Supreme Court Rule 28 when it was first delivered to prison authorities and, as such, was timely.

State of Tennessee v. Antonio Dwayne Johnson - Order
M2000-01505-CCA-R3-CD
Authoring Judge: Judge David G. Hayes

The Appellant, Antonio Dwayne Johnson, appeals, pro se, the sentencing decision of the Montgomery County Circuit Court revoking his Community Corrections sentence and ordering service of the sentence in the Department of Correction. On March 12, 1998, the Appellant entered an "open" guilty plea to the charge of aggravated robbery by use of a deadly weapon, a class B felony. The trial court subsequently ordered that the Appellant serve his eight year sentence in the Community Corrections program. On March 24, 1999, a violation warrant issued. On appeal, the Appellant argues that the trial court abused its discretion in revoking the Appellant's non-incarcerative status and placing him in the custody of the Department of Correction. We affirm the judgment of the trial court pursuant to Rule 20, Tenn. Ct. Crim. App. R.

State of Tennessee v. Aaron James - Concurring
M2000-00495-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt, Jr.

For purposes of affording guidance to litigants and trial judges who, in the future, may find themselves situated similarly to the parties and the trial court in the present case, I believe this court should have analyzed the prior-crime issue by dichotomizing it into separate parts, namely, (1) the litany of prior crimes set forth within the escape count of the indictment and (2) the state-sponsored testimony about these prior crimes. I believe that both of these different sources of information merit different judicial responses. In an appropriate case, the form of the response to the indictment language may well dictate the response to the testimony.