The Petitioner, Timmy Herndon, appeals the trial court's denial of his petition for habeas corpus relief. The State has filed a motion requesting that this Court affirm the trial court's denial of relief pursuant to Rule 20, Rules of the Court of Criminal Appeals. Because Petitioner has failed to allege a ground for relief which would render the judgment void, we grant the State's motion and affirm the judgment of the lower court.
The Petitioner, James Oliver Ross, appeals the trial court's denial of his petition for habeas corpus relief. The State has filed a motion requesting that this Court affirm the trial court's denial of relief pursuant to Rule 20, Rules of the Court of Criminal Appeals. The Petitioner fails to assert a cognizable claim for which habeas corpus relief may be granted. Accordingly, the State's motion is granted and the judgment of the trial court is affirmed.
The defendant, Christopher Paul Wilson, pled guilty to one count of reckless vehicular homicide, a Class C felony, and three counts of reckless aggravated assault, Class D felonies. Pursuant to the plea agreement, the trial court sentenced him as a Range I, standard offender to concurrent terms of six years for the reckless vehicular homicide conviction and two years for each of the reckless aggravated assault convictions, for an effective sentence of six years. On appeal, the defendant argues that the trial court erred in denying alternative sentencing. Following our review, we affirm the judgments of the trial court.
Washington
Court of Criminal Appeals
Shirley Ann Borchert v. Emerson Electric Company W2003-00111-WC-R3-CV
Authoring Judge: Joe C. Loser, Jr., Sp. J.
Trial Court Judge: C. Creed Mcginley, Judge
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 questions the trial court's findings as to permanency and extent of vocational disability. As discussed below, the panel has concluded the judgment fails to preponderate against the findings of the trial court. Tenn. Code Ann. _ 5-6-225(e) (22 Supp.) Appeal as of Right; Judgment of the Circuit Court Affirmed JOE C. LOSER, JR., SP. J., in which JANICE M. HOLDER, J., and JOE H. WALKER, III, SP. J., joined. Richard L. Dunlap, Paris, Tennessee, for the appellant, Emerson Electric Company Charles L. Hicks, Camden, Tennessee, for the appellee, Shirley Ann Borchert MEMORANDUM OPINION The employee or claimant, Ms. Borchert, initiated this civil action to recover workers' compensation benefits from her employer, Emerson, for a work related foot injury. Emerson denied liability. After a trial on the merits, the trial court awarded, among other things, permanent partial disability benefits based on 35 percent to the leg. 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). This tribunal is not bound by the trial court's findings but instead conducts an independent examination of the record to determine where the preponderance lies. Galloway v. Memphis Drum Serv., 822 S.W.2d 584, 586 (Tenn. 1991). Where the trial judge has seen and heard the witnesses, especially if issues of credibility and weight to be given oral testimony are involved, considerable deference must be accorded those circumstances on review, because it is the trial court which had the opportunity to observe the witnesses' demeanor and to hear the in- court testimony. Long v. Tri-Con Ind., Ltd., 996 S.W.2d 173, 178 (Tenn. 1999). The appellate tribunal, however, is as well situated to gauge the weight, worth and significance of deposition testimony as the trial judge. Walker v. Saturn Corp., 986 S.W.2d 24, 27 (Tenn. 1998). Conclusions of law are subject to de novo review on appeal without any presumption of correctness. Nutt v. Champion Intern. Corp., 98 S.W.2d 365, 367 (Tenn. 1998). The claimant was working on the employer's production line on August 24, 1999, when a piece of sheet metal, approximately one and one-half feet long and eight or nine inches wide, fell from a table top and landed on her right leg at the ankle. The ankle and foot immediately became swollen and bruised. She was taken to the Henry County Medical Emergency Room, where she was treated and referred to Dr. Bo Griffey. Dr. Griffey treated her with antibiotics and pain medication and returned her to light duty work on September 14, 1999. He returned her to full duty on November 2,1999. She continued to have swelling, pain and stiffness in her right ankle. She continued to see other doctors with those complaints. On November 3, 2, more than a year after her injury, she visited Dr. Vince Tusa. She also saw Dr. Segal, who referred her to an orthopedic surgeon, Dr. G. Blake Chandler. Dr. Chandler ordered magnetic resonance imaging, which revealed joint fusion and subcutaneous edema in the medial aspect of the injured ankle. She saw Dr. Joseph Boals, who studied her medical records, examined her and opined that she would retain some minor permanent impairment as a result of the injury. He advised her to wear an ankle brace and permanently restricted her from walking on uneven ground and from excessive stooping, squatting, standing, walking and climbing. She saw Dr. Robert Barnett, who, based on atrophy in her right calf, inability to stand on her right leg for any length of time, limited motion and a chronically swollen right ankle, estimated her permanent medical impairment to be 1 percent to the right lower extremity. She was evaluated by Dr. Amy Dunagan, who found no evidence of muscle atrophy or significant noticeable weakness. The claimant continues to have swelling in her right foot and ankle. She cannot walk or stand for long periods of time without experiencing extreme pain from her right ankle and calf. She takes Alleve to control the pain, has tenderness and limited motion in the injured joint and walks with a limp. Because she is no longer able to perform her assigned duties, she has not worked for the employer since March 14, 21. Her testimony in these respects was corroborated by other lay witnesses. The appellant contends the trial court erred in admitting into evidence the testimony of Dr. Boals because there was a discrepancy between his testimony and the report of Dr. Robb Mitchell, the doctor who performed the magnetic resonance imaging test. Dr. Mitchell's report said the -2-
Benton
Workers Compensation Panel
Willie Wooten v. Wal-Mart Stores East. Inc., W2002-02682-WC-R3-CV
Authoring Judge: Joe C. Loser, Jr., Sp. J.
Trial Court Judge: George H. Brown, Judge
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 questions the trial court's findings as to compensability and rate of compensation benefits. The employer also insists the trial court erred in ordering it to pay medical expenses to TennCare, and not directly to the health care providers. The employee insists the employer should have been assessed with a penalty for its failure to provide medical benefits. As discussed below, the panel has concluded the evidence fails to preponderate against the trial court's findings as to compensability and compensation rate, but should be remanded for determining TennCare's subrogation interest, if any. Tenn. Code Ann. _ 5-6-225(e) (22 Supp.) Appeal as of Right; Judgment of the Circuit Court Affirmed in Part; Remanded JOE C. LOSER, JR., SP. J., in which JANICE M. HOLDER, J., and JOE H. WALKER, III, SP. J., joined. Jay L. Johnson, Allen, Kopet & Associates, Jackson, Tennessee, for the appellants, Wal-Mart Stores, Inc. Keith V. Moore, Memphis, Tennessee, for the appellee, Willie Wooten MEMORANDUM OPINION The employee or claimant, Mr. Wooten, initiated this civil action to recover medical benefits, temporary total disability benefits and permanent partial disability benefits for a back injury occurring on November 15, 1999, arising out of and in the course of his employment with the employer, Wal-Mart Stores, Inc. He also sought general relief. The employer denied liability. After a trial on the merits, the trial court awarded permanent partial disability benefits based on 6 percent to the body as a whole, with a weekly benefit rate of $317.73 per week, temporary total disability benefits at the same rate from November 15, 1999 to July 1, 2, discretionary costs and medical expenses in the sum of $12,97.25. 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). This tribunal is not bound by the trial court's findings but instead conducts an independent examination of the record to determine where the preponderance lies. Galloway v. Memphis Drum Serv., 822 S.W.2d 584, 586 (Tenn. 1991). Conclusions of law are subject to de novo review on appeal without any presumption of correctness. Nutt v. Champion Intern. Corp., 98 S.W.2d 365, 367 (Tenn. 1998). On the above date, the claimant was stacking cases of juice when he suffered severe and sudden back pain and fell to the floor, while working for the employer. He reported the accident to his supervisor immediately and the store's general manager a few hours later. He was referred to Dr. Evan Murray, who treated him conservatively for two to two and one-half months, then referred him to a neurosurgeon, Dr. Davies, who diagnosed chronic low back radiculopathy and scheduled corrective surgery. Surgery was performed by Dr. Davies on May 23, 2. On August 3, 2, Dr. Davies released him to return to work with restrictions. The claimant has not returned to work. He continues to complain of pain and inability to work. He has seen a number of doctors. Dr. Parsioon, who had treated the claimant for a prior low back injury, visited briefly with him on April 26, 2. Dr. Parsioon testified that he found no evidence of a new injury as a result of the November 15, 1999 accident. However, the claimant's own testimony, the report of Dr. Davies and the testimony of Dr. Boals reflect that the accident contributed to the claimant's disability, either as the direct cause or by aggravating a pre-existing condition. The employer contends the event of November 15, 1999 was no more than a manifestation of the previous injury, which also occurred while the claimant was working for the employer and for which the claimant received no permanent disability benefits. The employer relies entirely on the testimony of Dr. Parsioon. When the medical testimony differs, the trial court must choose which view to believe. In doing so, the court is allowed, among other things, to consider the qualifications of the experts, the circumstances of their examination, the information available to them, and the evaluation of the importance of that information by other experts. Orman v. Williams Sonoma, Inc., 83 S.W.2d 672, 676 (Tenn. 1991). Moreover, it is within the discretion of the trial court to conclude that the opinion of certain experts should be accepted over that of other experts and that it contains the more probable explanation. Hinson v. Wal-Mart Stores, Inc., 654 S.W.2d 675, 676-7 (Tenn. 1983). Any reasonable -2-
Lori Ann Duncan appeals the Sullivan County Criminal Court's revocation of her probationary sentence. Duncan claims that the lower court abused its discretion in ordering her to serve her sentence in incarceration in the Department of Correction. However, we are unpersuaded and affirm the lower court's judgment.
The appellant, Kevin Lamont Hutchison, was convicted by a jury in the Montgomery County Circuit Court of aggravated robbery. The trial court sentenced the appellant to seventeen years imprisonment in the Tennessee Department of Correction. On appeal, the appellant contends that the evidence was not sufficient to support his conviction. Upon review of the record and the parties' briefs, we affirm the judgment of the trial court.
Montgomery
Court of Criminal Appeals
Susan Taylor v. Square D Company M2002-01620-COA-R3-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: Robert E. Corlew, III
Disobeying the direct orders of his supervisor, an electrician began work on a substation without following the proper safety procedures. He was electrocuted and perished almost instantly. The widow of the electrician brought suit against the manufacturer of the substation, alleging that the manufacturer was negligent and had defectively designed an unreasonably dangerous product. The trial court granted summary judgment for the manufacturer. Because there are no material factual disputes, and the negligence of the electrician was clearly greater than that of the manufacturer, we affirm the decision of the trial court.
Rutherford
Court of Appeals
State of Tennessee v. Vernica Shabree Ward M2002-01816-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Cheryl A. Blackburn
Defendant, Vernica Shabree Ward, appeals her conviction for second degree murder following a jury trial in the Davidson County Criminal Court. The victim was her daughter Stephanie Ward. Defendant was sentenced to twenty-five years in confinement. In this appeal as of right, Defendant presents eight issues for our review: (1) whether the trial court erred by allowing expert testimony by two witnesses based in part upon the deaths of two other children in addition to the victim in this case; (2) whether the trial court abused its discretion by allowing an expert to testify as to Defendant’s prior attempts to seek medical treatment for Stephanie and that Defendant had other living children; (3) whether the trial court erred by ruling that testimony regarding the statistical improbability of three unexplained infant deaths in the custody of the same caregiver would be admissible by the State as rebuttal proof if Defendant raised the issue of accident or mistake; (4) whether the trial court erred by allowing Dr. Case to testify despite the fact that defense counsel was unable to meet with Dr. Case prior to trial; (5) whether the testimony of the two medical experts at trial was cumulative; (6) whether the trial court properly denied Defendant’s request for a mistrial based on the State’s closing argument; (7) whether the evidence was sufficient to convict Defendant of second degree murder; and (8) whether the trial court properly sentenced Defendant to twenty-five years imprisonment. After a careful review of the record, we reverse the judgment of the trial court and remand for a new trial.
Davidson
Court of Criminal Appeals
State of Tennessee v. Vernica Shabree Ward - Concurring M2002-01816-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Cheryl A. Blackburn
I agree with the majority opinion that the so-called “rule of three” evidence should have been excluded in this case, based upon the trial court’s initial ruling that there was insufficient foundation laid to allow its admissibility. I write separately to express that I limit my decision to the instant case. After careful review, I concluded that the admissibility of this evidence was a very close decision and deferred, as I must, to the trial court’s decision. However, with additional testimony concerning the McDaniel factors, a proper foundation might be laid for admitting expert testimony concerning the “rule of three."
Davidson
Court of Criminal Appeals
Inez Seals and Terry Hurd v. Life Investors Insurance M2002-01753-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: John W. Rollins
This is a case involving the reformation of a settlement agreement terminating claims on two policies between plaintiffs and the defendant insurance company. The trial court refused to reform the settlement agreement and denied defendants their attorney's fees. For the following reasons, we affirm in part, reverse in part, and remand this case for further proceedings.
Sequatchie
Court of Appeals
Mary Watkins v. Bryan Watkins M2002-01777-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Royce Taylor
This is an appeal from an order denying a Tenn. R. Civ. P. 60.02 motion to set aside a default judgment entered in favor of Wife in her divorce from Husband. For the following reasons, we vacate the order of the trial court and remand for further proceedings.
The defendant, Mikel Ulysees Primm, was convicted of speeding, simple possession of cocaine, simple possession of marijuana, possession of drug paraphernalia, and criminal impersonation. The trial court imposed a sentence of 30 days for the speeding offense, 11 months and 29 days on each of the three possession offenses, and six months for the criminal impersonation offense. The sentence for criminal impersonation is to be served consecutively to the sentence for simple possession of cocaine. The remaining sentences are to be served concurrently to the sentence for simple possession of cocaine and to each other. In this appeal of right, the defendant argues that the trial court provided erroneous instructions to the jury as to the definition of constructive possession. The judgments are affirmed.
Dickson
Court of Criminal Appeals
Nashville & Davidson County v. Margaret Hudson M2002-02847-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Irvin H. Kilcrease, Jr.
This case involves an appeal from the trial court's grant of Appellee's motion for summary judgment. Appellee filed suit seeking to enjoin Appellant to remove vinyl siding that she had installed on her house in violation of a historic zoning ordinance. Appellant counter-complained alleging that the ordinance was void and unenforceable on grounds that the ordinance was unconstitutional and never properly adopted. Appellee subsequently moved for summary judgment which the trial court granted. We affirm.
Davidson
Court of Appeals
Eleonora Kogan. v. Tennessee Board of Dentistry M2003-00291-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Irvin H. Kilcrease, Jr.
In this case we are asked to determine the type of notice required to be given a defendant in a contested case hearing before a state administrative agency. We determine that Tennessee Compilation of Administrative Rules and Regulations 13604-1-.06 applies and requires personal service, return receipt mail, or, in the event of evading service, personal service with a person at the parties' dwelling place. In the case at bar, service of notice of the new trial date was made through regular mail only. This method of service is insufficient. The decision of the Board of Dentistry is vacated, and the case is remanded.
The petitioner appeals the denial of post-conviction relief. He argues his guilty plea to second degree murder was involuntary due to ineffective assistance of trial counsel. We affirm the judgment of the post-conviction court.
Rutherford
Court of Criminal Appeals
Irby C. Simpkins v. Peaches G. Blank M2002-02383-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Walter C. Kurtz
This case involves an appeal from a grant of summary judgment equitably dividing a tax refund of the parties and refusing to reopen the parties' marital dissolution agreement. In addition, appellant contends the trial court erred by awarding attorney's fees to appellee for issues relating to child support litigated below. For the following reasons, this Court affirms the decision of the trial court.
The defendant, Treasa Renee Shorter, pled guilty to possession of .5 grams or more of cocaine with intent to sell. The trial court imposed a sentence of nine years and nine months to be served in the Department of Correction. In this appeal, the defendant contends: (1) her sentence is excessive; and (2) the trial court erred in denying alternative sentencing. We affirm the judgment of the trial court.
Marshall
Court of Criminal Appeals
State of Tennessee v. Jesse Tuggle M2002-02426-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Timothy L. Easter
The appellant, Jesse Tuggle, was convicted by a jury in the Williamson County Circuit Court of one count of forgery, one count of theft of property valued under $500, and one count of criminal impersonation. The trial court sentenced the appellant to one and one-half years of imprisonment in the Tennessee Department of Correction for the forgery conviction, eleven months and twenty-nine days imprisonment for the theft conviction, and six months imprisonment for the criminal impersonation conviction. The trial court further ordered the sentences to be served concurrently. On appeal, the appellant contests the sufficiency of the evidence supporting his forgery conviction and argues that the trial court erred in denying alternative sentencing. Upon review of the record and the parties' briefs, we affirm the judgments of the trial court.
Williamson
Court of Criminal Appeals
In Re: D.D.K., D.M.M., and T.J.M., Jr. M2003-01016-COA-R3-PT
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: L. Raymond Grimes
This appeal involves a petition filed by the Department of Children's Services to terminate the parental rights of Father to his two minor children. The trial court granted the petition and Father appeals the decision. Because we find the petition was improperly granted, we vacate and remand.
Montgomery
Court of Appeals
Lynn Blevins v. Lester Blevins M2002-02583-COA-R3-CV
Authoring Judge: Judge Frank Clement, Jr.
Trial Court Judge: Tom E. Gray
This appeal arises from Wife's complaint for divorce. Based on Husband's failure to file an answer, Wife filed a motion for default and notice of hearing. Husband attended the hearing pro se and was afforded the opportunity to continue the hearing to retain legal counsel but declined to do so. After receiving testimony, the trial court awarded Wife a divorce, divided marital property and awarded Wife rehabilitative alimony for 60 months. Husband appeals, asserting that the trial court's division of marital property was not fair and equitable and that Wife did not provide proof sufficient to establish a proper basis for an award of rehabilitative alimony. We reverse and modify in part the division of marital property and indebtedness and reclassify the alimony from rehabilitative to in solido. In all other respects, we affirm the trial court.
Sumner
Court of Appeals
Donald Britt v. Roxanne Howell M2002-03070-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Robert L. Jones
The parties are adjacent commercial landowners of two story buildings with the second floors of their buildings being serviced by a common stairway between the two properties. The dispute involves use of the stairway and storage closets under and over the stairwell. The trial court held that the stairway was a common stairway, owned in equal undivided interests by the parties as was the upper floor storage area. The trial court further held that the lower floor storage area belonged exclusively to Appellees. We affirm the judgment of the trial court.
Maury
Court of Appeals
State of Tennessee v. Jerome Comer M2003-00733-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Buddy D. Perry
A Franklin County jury convicted the Defendant of one count of Sale of a Schedule II Controlled Substance, cocaine, and one count of Delivery of a Controlled Substance, also cocaine. The trial court merged the convictions and sentenced the Defendant to eight years in prison. The Defendant appeals, contending: (1) there was insufficient evidence to support his convictions; and (2) that the trial court imposed an excessive sentence. After reviewing the record, we conclude that sufficient evidence was presented to support the Defendant's convictions and the trial court did not err in sentencing the Defendant. Accordingly, we affirm the judgments of the trial court.
The Petitioner, Lavondas Cordell Nelson, pled guilty to one count of reckless endangerment with a weapon and one count of possession of a handgun by a felon in the Rutherford County Circuit Court, and the trial court imposed suspended two year sentences for each count, to be served consecutively, plus four years of probation at the expiration of those terms. The Petitioner filed a pro se petition for writ of habeas corpus and a motion requesting that the trial court appoint an attorney to represent him during the habeas corpus proceeding. The trial court denied his motion and dismissed his petition for writ of habeas corpus. On appeal, the Petitioner contends that: (1) the trial court erred in dismissing his petition for writ of habeas corpus; and (2) the trial court erred by denying his motion for appointment of counsel. Finding no reversible error, we affirm the trial court's judgment.
Rutherford
Court of Criminal Appeals
Earl M. Shahan v. Franklin County M2002-00725-COA-R3-CV
Authoring Judge: Judge William C. Koch, Jr.
Trial Court Judge: John W. Rollins
This case involves a dispute between Franklin County and the developer and residents of a subdivision over the maintenance of roads in the subdivision. After the county declined the developer's public dedication of the roads and denied applications for building permits in the subdivision because of inadequate roads, the developer and several property owners filed separate suits against the county in the Chancery Court for Franklin County to determine the responsibility for maintaining the roads. The property owners also sought specific performance and damages from the developer. The trial court consolidated the cases and, following a bench trial, held that the county was not responsible for maintaining the roads. The trial court also directed the developer to bring the roads up to 1990 subdivision standards. The developer asserts on this appeal that there had been an implied public dedication of the roads and, therefore, that the county was responsible for maintaining them. For their part, two property owners assert that they are entitled to damages in addition to specific performance. We have determined that the trial court correctly determined that the roads were not public roads and that the property owners were not entitled to damages as well as specific performance. However, we have also determined that the trial court should have ordered the developer to bring the roads up to the county's current road standards.
