Pursuant to Tennessee Code Annotated section 39-13-213(a)(1) (1997), the defendant, Adrianne Elizabeth Noles, was charged with vehicular homicide by recklessness in the Haywood County Circuit Court. She submitted a guilty plea to the charge, a Class C felony, and agreed to have the trial court determine the length and manner of service of her sentence. After a sentencing hearing, the trial court imposed a three-year sentence to be served in the Department of Correction. Aggrieved of the trial court’s rejection of any sentencing alternative to incarceration, she appeals. We affirm.
Haywood
Court of Criminal Appeals
State of Tennessee v. Tracy R. Pipes W2002-00433-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge C. Creed McGinley
The defendant, Tracy R. Pipes, appeals the Hardin County Circuit Court's revocation of her drug-offense probation. The court ordered her to serve the effective eight-year sentence in the Department of Correction. Because the record supports the lower court's actions, we affirm.
Hardin
Court of Criminal Appeals
State of Tennessee v. Melvin L. Harper E2001-01089-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Phyllis H. Miller
The appellant, Melvin L. Harper, was convicted by a jury in the Criminal Court of Sullivan County of aggravated robbery, a Class B felony. The appellant was sentenced as a Range II multiple offender to twenty years incarceration in the Tennessee Department of Correction. On appeal, the appellant challenges: (1) the sufficiency of the evidence to support his conviction of armed robbery; (2) the trial court's granting of the State's motion to amend the indictment on the day of trial; (3) the wording of the trial court's jury instructions regarding lesser-included offenses; and (4) the sentence imposed by the trial court. After a careful review of the record and the parties' briefs, we affirm the judgment of the trial court.
Sullivan
Court of Criminal Appeals
Jackie Wright & Kimberly Green vs. Azalea Rains E2002-01107-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: William H. Russell
Cager M. Casey ("Deceased") executed a revocable inter vivos trust agreement in July of 1992. The trust named a number of family members and friends as beneficiaries ("Appellees"). In January of 1999, Deceased executed a will. While this will does not specifically reference the trust, it does direct Deceased's PaineWebber stock be sold at his death and the proceeds given to Jackie L. Wright, Kimberly A. Green ("Appellants") and other members of the Wright family. Deceased owned no stock in PaineWebber. However, the trust was administered by UBS PaineWebber, Inc. ("PaineWebber"). Appellants submitted the 1999 will for probate and were granted letters testamentary. PaineWebber refused to turn over the trust investments absent court order. Appellants sued Appellees and PaineWebber. After trial, the Probate Court entered its judgment on November 29, 2001, holding the 1999 will did not alter the trust and the trust would, by its terms, distribute the trust assets to the trust beneficiaries. Appellants appeal the November 29, 2001 judgment. We affirm.
Loudon
Court of Appeals
Wanda F. Cherry, et al vs. First State Bank E2002-00981-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Ben W. Hooper, II
Wanda F. Cherry and Daniel R. Greene ("Plaintiffs") are the owners of property located on the parkway in Pigeon Forge. Wayne Burroughs ("Burroughs") owned property adjacent to the Plaintiffs' property, but Burroughs' property did not adjoin the parkway. Burroughs leased Plaintiff's property and used their property and his property to operate a business. During this time, Burroughs borrowed money from First State Bank ("Defendant"). Burroughs' leasehold interest in Plaintiffs' property was part of the collateral for this loan. After Burroughs filed for bankruptcy, his leasehold interest in Plaintiffs' property was sold at auction. Defendant was the highest bidder at the auction. Defendant paid rent for a period of time, but then stopped paying rent. Plaintiffs sued for past due rent. The Trial Court granted summary judgment to Plaintiffs and awarded damages totaling $127,968.60. Defendant appeals the grant of summary judgment to Plaintiffs. We affirm.
Sevier
Court of Appeals
Taylor & Fleishman vs. Kenneth Seaton E2002-00075-COA-R3-CV
Authoring Judge: Sr. Judge William H. Inman
Trial Court Judge: Sharon J. Bell
This is a suit to recover a contractual attorney fee. By virtue of circumstances plaintiff Dudley Taylor had the exclusive standing to contest a petition for the involuntary bankruptcy of Taylor and Associates, LLP, from whom defendant and five other individuals had received preferential payments which were required to be returned to the Trustee if the bankruptcy was approved. Conversely, if the bankruptcy was not approved, the defendant and others similarly situated would retain the preferential payments. The plaintiffs had invested a substantial sum with Taylor and Associates, LLP, but had received no preferences. Dudley Taylor devised a plan whereby, for a fee, he would intervene in the bankruptcy and oppose it, and if he were successful the defendant would retain the preferential payments. The defendant proposed a contract by which the plaintiff, for a non-refundable up-front fee of $100,000.00, and a $200,000.00 additional fee contingent upon success, agreed to oppose the bankruptcy as a party litigant. He was successful, but the defendant refused to pay the fee, asserting the invalidity of the contract on various grounds, including ethical considerations. The Chancellor allowed a recovery. We affirm.
Knox
Court of Appeals
In Re: Estate of Donald Henderson, Jeff Henderson vs. Kenneth Henderson E2002-01155-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Edwin C. Harris
Donald Ben Henderson ("Deceased") died in 1998. Jeff Henderson ("Appellant") is the Deceased's grandson. Kenneth Henderson ("Appellee") is the Deceased's son. Appellant and Appellee each submitted documents for probate purporting to be the last will and testament of the Deceased. In total, three wills and a revocation were filed with the Probate Court. The Probate Court entered its Order of Probate on October 18, 2001, holding that none of the three documents submitted should be admitted to probate as the Deceased's will. Based upon this determination, the Probate Court held the Deceased died intestate. More than thirty days after October 18, 2001, Appellee filed a motion to excuse the administrator ad litem and requested he be appointed personal representative of the estate. Appellant opposed the motion and filed a will contest. The Probate Court's order of April 23, 2002, appointed Appellee personal representative of the estate and stated its earlier order holding the Deceased died intestate was a final order. Appellant appealed. Appellee argues this Court lacks jurisdiction to hear the appeal because the notice of appeal was filed late. We hold the notice of appeal was not filed timely. We, therefore, are without jurisdiction to hear this appeal and, accordingly, dismiss the appeal.
Monroe
Court of Appeals
Nancy Webber vs. Gary Webber E2002-01355-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: William E. Lantrip
The Trial Court held it had jurisdiction over marital property and alimony. Husband argued since the divorce was granted in Nevada, the Nevada Decree was res judicata on these issues. We affirm.
Brenda Barton v. Anvil International, Inc., W2001-02523-WC-R3-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 trial court erred in considering an examining physician's opinion as not being based on statutory guidelines and (2) the award of permanent partial disability benefits based on 5 percent to one arm and 45 percent to the other arm is excessive.1 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 MICHAEL MALOAN, SP. J., joined. Jeffery G. Foster, Jackson, Tennessee, for the appellant, Anvil International, Inc. Scott G. Kirk, Jackson, Tennessee, for the appellee, Brenda Barton MEMORANDUM OPINION The employee or claimant, Ms. Barton, initiated this civil action to recover workers' compensation disability benefits for a work-related injury. The employer, Anvil International, denied liability for permanent disability. After a trial on the merits, the trial court awarded, among other things, benefits based on permanent partial disability to both arms. The employer has appealed. 1 An injury to both arms is a scheduled injury and the better practice is to average the awards to each arm for a single award base d on a per centage of b oth arm s. Scales v. City of Oak Ridge, 53 S.W .3d 649 at n. 1 (Tenn. 2 1). Th e issue d eem ed w aived since it wa s not raised in this a ppe al. For injuries occurring on or after July 1, 1985, 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.
Chester
Workers Compensation Panel
Donna Hardey v. Pml, Inc., Ebi Companies and James W2001-02569-WC-R3-CV
Authoring Judge: W. Michael William Michael Maloan, Special Judge
Trial Court Judge: Julian P. Guinn, 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. _5-6-285 (e)(3) for hearing and reporting to the Supreme Court of findings and fact and conclusions of law. In this appeal the plaintiff, Donna Hardey (Hardey) contends the evidence preponderates in favor of an award in excess of the twenty-five percent (25%) permanent partial disability to the body as a whole awarded by the trial court. For the reasons stated in this opinion, we affirm the judgment of the trial court. Tenn. Code Ann. _ 5-6-225(e) (21 Supp.) Appeal as of Right; Judgment of the Circuit Court Affirmed W. MICHAEL MALOAN, SP. J., in which JANICE M. HOLDER, J. and JOE C. LOSER, JR., SP. J., joined. Ricky L. Boren, Jackson, Tennessee, for the appellant, Donna Hardey. Jeffrey G. Foster, Jackson, Tennessee, for the appellee, PML, Inc. and EBI Companies. E. Blaine Sprouse, Nashville, Tennessee, for the appellee, Tennessee Department of Labor, Workers' Compensation Division MEMORANDUM OPINION The plaintiff, Hardey, was forty (4) years old at trial. She completed the eleventh (11th) grade and obtained a general equivalency diploma. Her work history is mostly manual labor in factories. She began working for PML in November 1994 as a welding machine operator until she was promoted to a group leader. As group leader she was responsible for assigning operators to presses and overseeing their operation. In July 1997 Hardey hurt her neck at PML. Dr. Glenn Barnett diagnosed a herniated C6 disc on the left and on January 26,1998 he performed an anterior cervical discectomy and fusion of the C6-7 discs. She filed a workers' compensation claim which was ultimately settled on January 8, 1999, for twenty percent (2%) permanent partial disability to the body as a whole. Hardey returned to work at PML as a group leader without restrictions. Hardey began to have problems with her right shoulder and arm and returned to see Dr. Barnett on June 25, 1999. Dr. Barnett determined that she had a C5 herniated disc. On October 14, 1999, Dr. Barnett performed as a second operation a discectomy and fusion at the C5-C6 level. As a result of this second surgery, Dr. Barnett assigned an additional five percent (5%) permanent impairment and advised Hardey not to lift in excess of thirty (3) pounds on a regular basis. In June 1999, Hardey complained to Dr. Barnett of right arm and finger numbness. A nerve conduction study showed mild to moderate carpal tunnel syndrome of the right arm. Dr. Barnett did not recommend surgery for this condition. When Dr. Barnett saw Hardey on February 7, 22, he noted she was doing "miserably, was quite uncomfortable, and taking up to fourteen Tylenol per day." Dr. Barnett testified it was not likely she would be able to return to work "unless she gets a dramatic improvement with her nonsurgical treatment of her pain." Due to her chronic pain, Dr. Barnett referred Hardey to Dr. Frank Jordan, a pain specialist. Dr. Jordan saw her on August 22, 21, diagnosed radicular pain, prescribed medication and performed two (2) epidural blocks. Hardey testified she did not get any relief from Dr. Jordan's treatment. Dr. Joseph Boals examined Hardey for an independent medical evaluation on October 3, 2. On examination, Dr. Boals found extensive loss of motion in her neck, hypesthesia in the last three (3) fingers of her right hand, and a positive Phalen's test on the right arm. He assigned a ten percent (1%) permanent impairment for each cervical surgery and an additional ten percent (1%) for chronic pain syndrome. Dr. Boals assigned an additional ten percent (1%) permanent impairment for the carpal tunnel syndrome. As a result of both injuries and surgeries to her neck and her carpal tunnel syndrome, Dr. Boals recommended she not go back to manual labor employment. Her restrictions include no overhead work, no work away from her body, and a weight limit of less than twenty (2) pounds with no repetitive work using her hands or heavy gripping using her hands, and she is suited to only sedentary or light work status. -2-
Benton
Workers Compensation Panel
Sandra Kay Powers, et al. v. American Interstate Insurance Company, et al W2001-02751-WC-R3-CV
Authoring Judge: Joe C. Loser, Jr., Sp. J.
Trial Court Judge: George R. Ellis, 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 the competent evidence preponderates against the trial court's finding that the deaths of two employees occurred in the course of their employment and in favor of a finding that the employees had materially deviated from their employment at the time of their deaths in a vehicular accident. As discussed below, the panel has concluded the judgment of the trial court 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. Stephen Craig Kennedy, Selmer, Tennessee, for the appellants, Staton's Home Furnishings and American Interstate Insurance Company Art D. Wells, Jackson, Tennessee, for the appellee, Sandra Kay Powers, as guardian and next friend of Jessica Witherspoon, Billy Joe Witherspoon and Cody Witherspoon, minor children of David Witherspoon, deceased Gayden Drew, Jackson, Tennessee, for the appellee, Robbie McEwen, administrator of the Estate of Timothy Gallimore, deceased MEMORANDUM OPINION By these consolidated civil actions, the claimants sued to recover workers' compensation benefits, as provided by the Workers' Compensation Act, Tenn. Code Ann. _ 5-6- 11 et seq, for the accidental deaths of David Witherspoon and Charles Timothy Gallimore on July 29, 1999. The employer, Staton's Home Furnishings, and its insurer, American Interstate Insurance Company, denied liability. After a trial on the merits, the trial court awarded death benefits to the estate of Gallimore and dependents' benefits to the children of Witherspoon. The employer and its insurer have appealed. For injuries occurring on or after July 1, 1985, 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.
Gibson
Workers Compensation Panel
Peter Zabaski v. Mary Ann Zabaski M2001-02013-COA-R3-CV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: Marietta M. Shipley
The trial court granted a divorce to the parents of an only child with a history of severe medical problems, and awarded them joint custody. The wife contends on appeal that the trial court's order of custody and visitation was not in the child's best interest. She also argues that the court erred by setting the husband's child support obligation too low, and by failing to award her alimony in futuro. We affirm the trial court.
Davidson
Court of Appeals
James Staggs v. Lori Staggs M2001-01192-COA-R3-CV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: Leonard W. Martin
The trial court transferred custody of the parties' two children from the mother to the father. The mother argues on appeal that there was no change of circumstances to support a change of custody, and no proof that the change would be in the best interest of the children. We affirm the trial court.
Following a jury trial, Defendant, James Charles Cavaye, was convicted of first degree felony murder and especially aggravated robbery. He was sentenced to life imprisonment for the murder, and to a consecutive sentence of twenty-four years for the especially aggravated robbery. In this appeal as of right, Defendant contends that (1) the trial court failed to fulfill its role as the thirteenth juror; (2) the accomplice's testimony was insufficiently corroborated; (3) the trial court erred in applying enhancement factors in setting Defendant's sentence for especially aggravated robbery; and (4) the trial court erred in ordering Defendant's sentences to run consecutively. Based upon our review of the record, we affirm the judgment of the trial court.
Davidson
Court of Criminal Appeals
F. T. Greer v. Joseph Marci M2001-02536-COA-R3-CV
Authoring Judge: Judge Thomas W. Graham
Trial Court Judge: Tom E. Gray
This appeal arises from the denial of the Chancery Court of Sumner County of Plaintiffs' request for an injunction. The dispute involves the construction of a brick entranceway which connects a county road to Defendants' driveway easement over the Plaintiffs' property. The entranceway lies within the "metes and bounds" of a county road. The Chancellor refused to grant an injunction ordering removal of the entranceway holding that the county was the only party with standing to seek removal of obstructions within the right-of-way of a county road. We disagree with the Chancellor and find that the Plaintiffs own fee simple title to the pertinent portion of the right-of-way and therefore have standing to assert their ownership rights independent of the county. We therefore reverse the finding of the Chancellor and remand the case for further proceedings.
Sumner
Court of Appeals
City of Oak Hill v. AAMP M2001-00688-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Carol L. Mccoy
This appeal concerns the City of Oak Hill's efforts to enforce its exclusively residential zoning restrictions over a parcel of land situated at the city's eastern border. The city appeals the trial court's finding that "parcel 109" was located outside of Oak Hill's city boundary and, therefore, not subject to the city's zoning ordinances. We affirm the action of the trial court.
Davidson
Court of Appeals
Herman Howard. v. American Industries Services M2001-02711-COA-R3-CV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: Ellen Hobbs Lyle
The Chancery Court of Davidson County dismissed the complaint in this case for the plaintiffs' failure to respond to discovery requests. The plaintiffs assert on appeal that the chancellor abused her discretion. We affirm the chancery court.
This is yet another case in which the parties have been ensnared in the procedural pitfalls of a certified question of law. Defendant entered a negotiated plea of guilty to possession of over seventy pounds of marijuana with intent to sell or deliver with an agreed sentence of eight years. He attempted to reserve a certified question of law pursuant to Tennessee Rule of Criminal Procedure 37(b)(2)(iv), "with the consent of the court," relating to the search and seizure of the contraband. Because the defendant entered a negotiated plea of guilty and neither the judgment nor the order of the court reflects the state's consent to the certified question, we must dismiss the appeal.
Williamson
Court of Criminal Appeals
James Pemerton & Deborah Pemerton v. Beauty Wall Painting M2001-01638-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Carol L. Soloman
This is a breach of warranty case. The plaintiff homeowners contracted with the defendant painter to have their home painted. The contract included a one-year warranty on labor and materials. After the work was completed, the paint began to peel, blister, and separate from the wood siding. The homeowners sued the painter under the warranty. The trial court found that the homeowners complained of the problems within the one-year warranty period. The trial court awarded the homeowners damages for the amount paid to the painter, substantial damages for repairs, and discretionary costs. On appeal, the painter argued that the trial judge failed to properly understand the testimony of the parties regarding the painter's actions after being informed of the paint problems, and therefore, improperly discredited the painter's testimony with regard to the issue of the date the homeowners told the painter about the defective work. We affirm, finding that the defendant painter failed to show any basis for reversing the credibility determination of the trial court.
Davidson
Court of Appeals
Greg Melton v. Gerald Melton M2002-00532-COA-R3-CV
Authoring Judge: Judge W. Frank Crawford
Trial Court Judge: J. B. Cox
Beneficiaries of irrevocable insurance Trust filed a Complaint against the Trustees, seeking to have the corpus of the trust distributed and the Trust terminated by its own terms. One Trustee, acting pro se, answered the Complaint. Beneficiaries filed a Motion for Summary Judgment supported by their joint affidavits. No response or countervailing affidavit was filed, and an Order was entered granting the Motion. Trustee appeals. We affirm
Bedford
Court of Appeals
McLane Co. v. State M2002-00838-COA-R3-CV
Authoring Judge: Judge W. Frank Crawford
Trial Court Judge: Irvin H. Kilcrease, Jr.
Licensed wholesale tobacco distributor filed petition against the State seeking the disclosure of identities of all licensed tobacco wholesale distributors in the State of Tennessee pursuant to the provisions of the Tennessee Public Records Act. State opposed petition on the grounds that disclosure of this information was controlled by the taxpayer confidentiality provisions of the revenue statutes. Chancery Court granted petition and ordered disclosure of the names and addresses of all licensed wholesale tobacco distributors in Tennessee but, on the state's motion, stayed its order pending appeal. State appeals. We reverse and dismiss.
Davidson
Court of Appeals
State v. Patty Grissom M2002-00279-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Charles D. Haston, Sr.
The appellant, Patty Francine Grissom, was convicted of the simple possession of a Schedule II controlled substance and she received a probationary sentence of eleven months and twenty-nine days. Subsequently, the trial court revoked the appellant's probation upon finding that she had possessed drugs and drug paraphernalia while on probation. On appeal, the appellant raises several issues concerning her probation revocation. Upon reviewing the record and the parties' briefs, we affirm the judgment of the trial court.
Warren
Court of Criminal Appeals
State v. Phillip Wilcox M2002-00667-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: L. Craig Johnson
The defendant contends the trial court erred in revoking his probation. He claims the trial court improperly considered evidence of probation violations, because he was not given proper notice of the violations by the probation revocation warrant. He further claims that the evidence adduced at the probation revocation hearing was insufficient to revoke his probation. The trial court heard evidence of probation violations that were not included in the probation warrant, but the trial court specifically stated it did not consider such evidence in revoking the defendant's probation. Because sufficient evidence exists to prove the defendant violated Rule One of his Rules of Probation, we affirm the judgments of the trial court.
