Jerry T. Beech Concrete Contractor, Inc. v. Larry Powell Builders, Inc., et al
M2000-01704-COA-R3-CV
Authoring Judge: Senior Judge William H. Inman
Trial Court Judge: Chancellor Ellen Hobbs Lyle

This is an action by a contractor to receive the balance due under a contract for the construction of two buildings. The owner counterclaimed for damages alleging lack of good workmanship. A principal issue concerned attorney fees, and whether a document purporting to be a contract was, in fact, a contract. We hold that the document proffered by the plaintiff was accepted as a contract by the defendant, and that the attorney fee provision is enforceable.

Tommy Burgess, et al., v. Bill Fuller, D/B/A Bill Fuller Landscaping
M2000-02094-COA-R3-CV
Authoring Judge: Presiding Judge Ben H. Cantrell
Trial Court Judge: Judge Robert L. Holloway

In this dispute over a landscaping contract, the Circuit Court of Maury County held that the contractor breached the agreement. The defendant contends that the court rewrote the agreement. We disagree and affirm the judgment of the trial court.

State of Tennessee v. Winslow B. Roberts
W2000-00141-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Carolyn Wade Blackett

The Defendant, Winslow B. Roberts, was found guilty by a Shelby County jury of two counts of especially aggravated kidnapping and two counts of aggravated robbery. The Defendant was sentenced to twenty years on each count of especially aggravated kidnapping, with the terms to be served concurrently, and ten years on each count of aggravated robbery, with the terms to be served concurrently. The trial court ordered that the Defendant's sentences for especially aggravated kidnapping be served consecutively to his sentences for aggravated robbery, for an effective sentence of thirty years. The Defendant now appeals, arguing that there was insufficient evidence presented at trial to convict him of especially aggravated kidnapping and aggravated robbery. Finding no error, we affirm the judgment of the trial court.

State of Tennessee v. William M. Fahr
W2000-00973-CCA-R3-CD
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Judge Joseph B. Brown

Defendant was indicted by a Shelby County grand jury on the charge of rape of a child. Pursuant to a negotiated plea agreement, defendant entered a plea of nolo contendere to sexual battery and received a two-year sentence. The issue of how his sentence should be served was submitted to the trial court. Upon our review of the record, we conclude that it is necessary to remand for a new sentencing hearing since the trial court relied upon the defendant's failure to make a public confession at a church in determining the sentence.

State of Tennessee v. Freddie L. King
W2000-01256-CCA-R3-PC
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge Bernie Weinman

The Defendant pled guilty to several offenses in 1992, receiving an agreed effective sentence of twenty-four years. He subsequently filed for post-conviction relief, which was denied after a hearing. The Defendant filed a second post-conviction petition which the trial court summarily dismissed. The Defendant now appeals; we affirm the judgment of the trial court.

State of Tennessee v. Charles Roy Cole
W2000-01129-CCA-R3-CD
Authoring Judge: Presiding Judge Gary R Wade
Trial Court Judge: Judge Roy B. Morgan, Jr.

The defendant, Charles Roy Cole, was charged with aggravated assault and rape of a child. He was acquitted on the first charge and convicted on the second. The trial court imposed a sentence of 20 years. In this appeal of right, the defendant challenges the sufficiency of the evidence and argues that the trial court erred in its jury instructions regarding admissions against interest. The judgment is affirmed.

State of Tennessee v. Thomas Leon Lewis, II
W2000-01740-CCA-R3-CD
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Judge Roger A. Page

Pursuant to a negotiated plea agreement, the defendant pled guilty to contributing to the delinquency of a minor, a Class A misdemeanor, and unlawful use of an altered vehicle registration plate, a Class E felony. He received concurrent sentences of eleven months, twenty-nine days and two years, respectively, to be served on probation. The defendant appeals the trial court's denial of his request for judicial diversion. Upon our review of the record, we affirm the judgment of the trial court.

Anthony J. Robinson v. State of Tennessee
W2000-02248-CCA-R3-CO
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Judge W. Otis Higgs, Jr.

Petitioner was originally convicted by a Shelby County jury of aggravated rape, a Class A felony, and sentenced to thirty-seven years as a Range II offender. Petitioner now appeals the denial of his petition for writ of habeas corpus in which he alleged his indictment was void. Upon our review of the record, we affirm the judgment of the trial court.

David Patrick Pearson v. State of Tennessee
E2000-00438-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Richard R. Baumgartner

The petitioner appeals from the Knox County Criminal Court's dismissal of his petition for post-conviction relief, by which he sought to set aside his earlier guilty pleas. On appeal, the petitioner presses his claim that because he received ineffective assistance of counsel, his guilty pleas were not voluntary and knowing. Finding that the services of the petitioner's trial counsel were below the range of competence demanded of attorneys in criminal cases and that the petitioner was thereby prejudiced, we reverse the judgment of the post-conviction court, vacate the petitioner's convictions, and set aside the petitioner's guilty pleas without prejudice to further proceedings on the underlying charges.

State of Tennessee v. Mark A. Stacy
E2000-02906-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Carroll L. Ross

The defendant was indicted by a Polk County Grand Jury for first degree murder. Following a two-day trial, he was found guilty of second degree murder, a Class A felony. The trial court sentenced the defendant to twenty-three years as a Range I, violent offender in the Tennessee Department of Correction. In this appeal as of right, the defendant does not challenge his conviction but contends only that his sentence is excessive. Having reviewed the entire record, including the transcript of the sentencing hearing, we conclude that the defendant's issues concerning the length of his sentence are without merit. We affirm the judgment of the trial court.

State of Tennessee v. David Walter Troxell
M2000-01100-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Robert E. Burch

Defendant, charged with possession with intent to sell and/or deliver a controlled substance and possession of drug paraphernalia, filed a motion to suppress over 300 grams of cocaine, paraphernalia, and U.S. currency discovered during a search of his vehicle. The trial court, Dickson County, granted Defendant's motion to suppress the evidence on the ground that the search impermissibly exceeded the scope of Defendant's consent. The State appealed. After a review of the record, we reverse the judgment of the trial court.

State of Tennessee v . Victor D. Neuenschwander
M2000-01334-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Timothy L. Easter

The Defendant pleaded guilty to sexual battery by an authority figure, a Class C felony. The Defendant was sentenced as an especially mitigated offender to two years and seven months in the Tennessee Department of Correction. The Defendant now appeals, arguing that the trial court erred in denying him alternative sentencing. Finding no error, we affirm the judgment of the trial court.

State of Tennessee v. Sean W. Conway
M2000-01263-CCA-R3-CD
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Judge Timothy L. Easter

The defendant was indicted for driving under the influence (DUI), driving while his alcohol concentration was .10% or more (DUI per se), and DUI, second offense. After a jury trial on DUI and DUI per se, the jury acquitted the defendant of DUI and was unable to reach a verdict on DUI per se. A second trial was held, and the jury convicted the defendant of DUI per se. The trial judge then found this conviction to be a second offense. In this appeal, the defendant alleges (1) the defendant's retrial for DUI per se violated the principles of double jeopardy; (2) the trial court erroneously admitted the results of the breath test and related evidence; (3) the trial court erroneously admitted testimony of the arresting officer concerning his encounters with other motorists charged with DUI; (4) the trial court improperly considered a prior conviction for enhancement of the defendant's sentence; and (5) the trial judge erroneously failed to recuse himself. Upon review of the record, we reduce the defendant's conviction to DUI, first offense, remand for resentencing, and affirm the trial court in all other respects.

State of Tennessee v. Jacob Lee Davis
M1999-02496-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge W. Charles Lee

Following a jury trial, Defendant, Jacob Lee Davis, was convicted of premeditated first degree murder, reckless endangerment, and carrying a weapon on school property. The trial court sentenced him to life imprisonment for the first degree murder conviction and one year each for the reckless endangerment and carrying a weapon on school property convictions. The trial court ordered that the latter sentences be served concurrent to the sentence for life imprisonment. On appeal, the Defendant challenges the sufficiency of the evidence to sustain each of the convictions and argues that the trial court erred in failing to strike six potential jurors for cause. After a review of the record, we affirm the judgment of the trial court.

Billy Saleem El-Amin, aka Billy Noble Forrest v. Jack Morgan, Warden and State of Tennessee
M1999-02172-CCA-R3-PC
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Thomas W. Brothers

The petitioner filed a petition for writ of habeas corpus, contending that the two sentences for which he was incarcerated were being served concurrently and that both had expired, resulting in his being held illegally by the Tennessee Department of Correction for the second sentence. However, the Court of Appeals, presented previously with this same issue by the petitioner, determined that the sentences were to be served consecutively. Thus, the second sentence has not expired. We reverse the order of the post-conviction court that the two sentences were served concurrently and that the second sentence has expired. The petition for writ of habeas corpus is dismissed.

State of Tennessee v. Cynthia Taylor Mann
M1999-01390-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge John H. Gasaway, III

The Defendant pleaded guilty to theft of property valued over sixty-thousand dollars, a Class B felony. The trial court sentenced the Defendant as a Range I, standard offender to the minimum eight-year sentence, to be served in the Tennessee Department of Correction. The Defendant now appeals, arguing that the trial court erred in denying her alternative sentencing. We affirm the judgment of the trial court.

State of Tennessee v. Michael A. Miller
E2000-00930-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Lillie Ann Sells

The defendant was convicted in the Cumberland County Criminal Court of aggravated sexual battery of a seven-year-old boy. Following the trial court's denial of his motion for a new trial, the defendant filed an appeal as of right to this court, raising three issues: (1) whether the evidence was sufficient for a rational trier of fact to find him guilty beyond a reasonable doubt of aggravated sexual battery; (2) whether the trial court abused its discretion in denying his motion for a new trial, based upon newly discovered evidence; and (3) whether the trial court erred in failing to instruct the jury on lesser-included offenses. Based upon our review, we affirm the judgment of the trial court.

Danny Bell v. Emerson Electric Company
W1999-00988-WC-R3-CV
Authoring Judge: John K. Byers, Sr. J.
Trial Court Judge: George R. Ellis, Chancellor
The trial court found the plaintiff sustained a seven and one-half percent permanent partial disability to the body as a whole as a result of an on-the-job injury to his left shoulder. The defendant says the evidence does not support the finding. We affirm the judgment of the trial court.

Donald L. Hughes v. Memphis Light, Gas & Water, et al.
W2000-01056-WC-R3-CV
Authoring Judge: Joe C. Loser, Jr., Sp. J.
Trial Court Judge: Floyd Peete, Jr., Chancellor
The employer insists (1) the trial court erred in finding a causal connection between the injury and the employment and (2) the trial court violated Tenn. R. Civ. P. 52.2 by filing findings of fact and conclusions of law after entry of final judgment. The Second Injury Fund insists the award of permanent partial disability benefits based on 85 percent to the body as a whole is excessive. The employee insists that the Second Injury Fund lacks standing in this tribunal because it did not file a notice of appeal, that the award is inadequate and that the appeal is frivolous. As discussed below, the panel has concluded the judgment should be affirmed.

Jhy D. Johnson v. Lojac Materials, Inc.
M2000-01811-WC-R3-CV
Authoring Judge: Joe C. Loser, Jr., Sp. J.
Trial Court Judge: C. K. Smith, Chancellor
This workers' compensation appeal has been referred to theSpecial 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 award of permanent partial disability benefits based on 5 percent to the left hand is excessive. The employee contends the award is inadequate. As discussed below, the panel has concluded the judgment should be affirmed. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Chancery Court Affirmed. JOE C. LOSER, JR., SP. J., in which FRANK F. DROWOTA, III, J., and JOHN K. BYERS, SR. J., joined. James H. Tucker, Jr., Manier & Herod, Nashville, Tennessee, for the appellant, Lojac Materials, Inc. William E. Farmer, Lebanon, Tennessee, for the appellee, Jhy D. Johnson. MEMORANDUM OPINION The employee is 26 years old and a high school graduate with some experience as an unskilled laborer. While at work on June 1, 1999, the employee or claimant, Johnson, caught his hand in a machine, fracturing the third and fourth metacarpals. He underwent surgery and was released to return to work without any permanent restrictions on July 27, 1999. He did not return to Lojac, but did return to work. The surgeon assessed his permanent impairment at 2 percent to the hand. An independent medical examiner assessed his permanent impairment at 3 percent to the hand. The injured worker says he cannot do some things he did before the injury. Upon the above summarized evidence, the trial judge awarded permanent partial disability benefits based on 5 percent to the hand. Appellate review is de novo upon the record of the trial court, accompanied by a presumption of correctness, unless the preponderance of the evidence is otherwise. Tenn. Code Ann. _ 5-6-225(e)(2). The panel is not bound by the trial court's findings but conducts an independent examination of the evidence to determine where the preponderance of the evidence lies.

Viki Parker v. WaUSAu Insurance Companies.
W2000-01517-WC-R3-CV
Authoring Judge: L. Terry Lafferty, Senior Judge
Trial Court Judge: George R. Ellis, Judge
After a detailed analysis of the evidence in the trial record, the trial court found the plaintiff sustained a 45 percent permanent partial disability to the right and left arms. However, the trial court denied the request for a lump sum. The defendant, Wausau Insurance Companies, appeals and presents one issue for appellate review: Whether the trial court's award of 45 percent permanent partial disability to each of the plaintiff's arms is excessive and not supported by a preponderance of the evidence? From our review of the entire record, the judgment of the trial court is affirmed for the reasons set forth below.

Muriel C. Warren v. Henry I. Siegel Co., Inc.,
W2000-01387-WC-R3-CV
Authoring Judge: L. Terry Lafferty, Senior Judge
Trial Court Judge: Ron E. Harmon, Chancellor
The employer has appealed two issues from the trial court: (1) Whether the ten percent (1%) of the anatomical rating provided by Plaintiff's evaluating physician should have been assigned to Plaintiff's thumbs rather than to the arms; and (2) Whether the preponderance of the evidence supports the trial court's award of ninety percent (9%) permanent partial disability to the right arm and fifty percent (5%) permanent partial disability to the left arm. From our review of the record, we affirm the trial court's judgment.

State of Tennessee v. Dennis R. Jacks
E2000-00643-CCA-R3-CD
Authoring Judge: Judge Joseph M. Tipton
Trial Court Judge: Judge James B. Scott, Jr.

The defendant appeals from the revocation of his probation, contesting the trial court's jurisdiction. We affirm the judgment of the trial court.

Murray E. Body v. Jim Lamarr
M2000-02111-COA-R9-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Judge Arthur E. McClellan

Murray E. Body ("Plaintiff") filed this personal injury suit against the owner of a jet ski, Jim Lamarr ("Defendant"). Plaintiff sustained physical injuries while pulling ski ropes into his boat when Defendant's jet ski ran over Plaintiff's ski ropes. Plaintiff had a boating policy ("Policy") with Continental Insurance Company ("Continental") which had uninsured boater limits of $100,000. Defendant had a liability policy with limits of $50,000. Plaintiff contends that his damages exceed Defendant's limits and that his Policy should be interpreted to provide coverage for accidents involving underinsured boaters. Continental filed a Motion to Dismiss, arguing that the Policy's language clearly and unambiguously does not provide coverage for underinsured boaters. The Trial Court treated Continental's motion as a Motion for Summary Judgment and granted the motion. Plaintiff was granted an interlocutory appeal. We affirm.

Leta Johnson v. Henry I. Siegel Co., Inc.,
W1999-00408-WC-R3-CV
Authoring Judge: Robert L. Childers, Sp. J.
Trial Court Judge: Julian Guinn, Judge
The appellant presents the following issues for review: Whether the evidence preponderates against the trial court's determination of permanent partial disability. After a review of the entire record, briefs of the parties and applicable law, we affirm the trial court's judgment.