Larry Kerr vs. Anderson County
E2002-00020-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: James B. Scott, Jr.
The Trial Judge held plaintiff's employment Contract was valid and enforceable. On appeal, we reverse on the grounds the provisions in the Contract are against public policy.

State of Tennessee v. Tammy B. Davenport
E2001-02980-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Leon C. Burns, Jr.

The defendant pled guilty to six counts of forgery over $1000, a Class D felony, and four counts of forgery, a Class E felony, with the sentences to be set by the trial court. At the conclusion of the sentencing hearing, the trial court sentenced the defendant as a Range I, standard offender to the maximum terms of four years for each forgery over $1000 conviction and two years for each forgery conviction, with the sentences to be served concurrently in the Department of Correction. The trial court denied the defendant's request for full probation or split confinement. The defendant appeals, arguing that the trial court erred by failing to place its findings on the record and by denying probation or a sentence of split confinement. Based on our review, we affirm the sentences imposed by the trial court.

State of Tennessee v. Branden Haney and Lawrence Davis
E2002-00559-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Ben W. Hooper, II

The appellants, Branden Haney and Lawrence Davis, pled guilty in the Cocke County Circuit Court to one count of possession of more than .5 grams of a substance containing cocaine with intent to sell, a Class B felony; one count of possession of more than .5 ounces of marijuana with intent to sell, a Class E felony; and one count of possession of drug paraphernalia, a Class A misdemeanor. The trial court sentenced Haney as a Range I standard offender to an effective sentence of eight years incarceration in the Tennessee Department of Correction, with the sentence to be suspended and served in a community corrections program. The trial court sentenced Davis as a Range I standard offender to an effective sentence of eight years incarceration, with the sentence to be suspended and served in a community corrections program "after [one] year split confinement in [the] Cocke County Jail." Pursuant to their plea agreements, Haney and Davis reserved the right to appeal certified questions of law challenging the trial court's denial of their motions to suppress. Upon review of the record and the parties' briefs, we affirm the judgments of the trial court.

W2002-03027-COA-R7-CV
W2002-03027-COA-R7-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Arnold B. Goldin

Debbie G. Scott v. Federal Express Corporation,
E2002-00941-WC-R3-CV
Authoring Judge: John K. Byers, Sr. J.
Trial Court Judge: Howell N. Peoples, Chancellor
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann._ 5-6-225 (e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The plaintiff filed a petition seeking compensation for an ankle injury which occurred July 16, 1997 and for a back injury which occurred on May 11, 2. The trial judge bifurcated the two claims and heard the back injury case. On April 15, 22 the trial court entered a judgment which dismissed the portion of the complaint seeking compensation for the back injury. The plaintiff says the evidence preponderates against this finding. We affirm the judgment of the trial court. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Chancery Court Affirmed JOHN K. BYERS, SR. J., in which WILLIAM M. BARKER, J. and JOSEPH M. TIPTON, SP. J., joined. Selma Cash Paty, Chattanooga, Tennessee, attorney for the appellant, Debbie G. Scott. Kent E. Krause, Nashville, Tennessee, attorney for the appellees, Federal Express Corporation and Sentry Insurance. MEMORANDUM OPINION At the time of the trial, the plaintiff was forty-nine years of age. She began work for the defendant in 1986. Her duties were as a delivery person. This required her to load a truck with packages to be delivered to customers, to drive the truck to the location of customers, to unload packages at designated places and to pick up packages from customers. In July 1998 the plaintiff had a two-level bone fusion at L4-L5 and L5-S1. The need for the surgery was non-work related. In December of 1998 the plaintiff fell at work and experienced some back pain through January 1999, for which she saw a doctor. In July 1999 the plaintiff twisted her ankle and suffered a severe sprain. She was placed in a fracture boot as a result of this. The plaintiff testified that this caused her back and leg to hurt. The plaintiff conceded, however, she had reported to her doctor that she was having increased lower back pain radiating into her hip and down her leg on April 27, 2. Medical Treatment The pertinent medical evidence was given by Dr. Richard G. Pearce, an orthopedic surgeon, who treated the plaintiff for her previous back injury and also treated her in relation to her limb complaints. Dr. Pearce testified the problem the plaintiff now suffers is as a result of degenerative changes at the L3-4 level which is above the vertebra that were fused in the 1998 surgery. He testified it is not unusual for this to occur above a fusion. Further, he testified the incident of May 11 [12] caused the plaintiff's symptoms from this disc level to get worse. Dr. Pearce's testimony as it relates to whether the plaintiff is entitled to recover is better understood by setting out his testimony verbatim. Q. Would you go back, Doctor, now and compare those complaints with the complaints that she had on April 27th of 2? A. They were similar complaints. Q. Virtually identical; aren't they, sir? A. Well, if you read the dictation, it would be very similar, yes, sir. Q. In fact, she told you on that day that she had some increasing lower back pain with some pain radiating into her hip and down into her right leg; correct? A. That's correct. Q. Doctor, is it _ is it your opinion that the incident that she described to you in January 21 relating to you for the first time an injury that she alleges occurred on May 11, 2, and your opinion that that is the cause of her current problems, is that based on her telling you that there was an increase in her symptoms, in other words, an increase in her pain? A. Yes, sir. Q. Do you have any other source, study, history from her that -2-

Dorothy Krueser v. Barry Smith
M2001-03135-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Muriel Robinson
This is a child support case. The trial court increased Mr. Smith's child support from $3,500.00 per month to $10,000.00 per month based on his substantial increase in income. For the following reasons, we modify this decision of the trial court.

Timothy Gaither v. Jessie Bush & Angela White v. Timothy Gaither
M2001-01952-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: J. B. Cox
This is a case involving the division of wrongful death proceeds between the divorced parents of the deceased. The deceased was eighteen, healthy, and about to enter the military. The plaintiff mother asked for an equal division of the proceeds of a wrongful death settlement entered by the father. Also included in the settlement was the father's action, individually, for his emotional trauma suffered while witnessing his son's death. A jury was asked to divide the settlement proceeds between the parties. The jury found that all of the damages for the pecuniary value of the son's life were attributable to the mother and father, and none were attributable to the son. For the following reasons, we affirm.

Thomas Monroe v. Catherine Robinson
M2001-02218-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Muriel Robinson
This appeal arises from the granting of a petition to object to removal of a minor child. The trial court granted the father's petition and prevented the mother from relocating out of state with the minor child, finding that the parties spent substantially equal time with the child and that the move was not in the child's best interest. The parties raise multiple issues on appeal. For the following reasons, we affirm.

Monica Goldberg v. Russell Goldberg
M2001-01442-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Russell Heldman
This is a divorce case involving alimony and property division. The parties have five children; the oldest is severely handicapped and the three youngest are minors. The husband is a hospital consultant. The wife works part-time as a nurse and owns a small business. In addition to child support, the trial court ordered the husband to pay substantial alimony in futuro, and assume approximately ninety-eight percent of the marital debt. The husband was also ordered to maintain a considerable amount of life insurance to secure his spousal and child support obligations. On appeal, the husband argues that the award of alimony is excessive, that rehabilitative alimony instead of alimony in futuro should have been awarded, that the trial court improperly divided the marital debt, and that the amount of life insurance required was excessive. We affirm in part and reverse in part. We affirm the trial court's holding with regard to the division of marital debt and the amount of life insurance, and modify the award of alimony, awarding rehabilitative alimony in a reduced amount.

State of Tennessee v. Melvin Waters
M2002-01297-CCA-RM-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Steve R. Dozier

The Supreme Court remanded this case to determine the issue of whether the trial court erred in sentencing the defendant to twelve years for the facilitation of aggravated robbery. The defendant was classified as a Range II offender. Twelve years is outside the range of a Range II offender, Class C felony. We conclude that the sentence is proper in that it does not exceed the range for a Class C felony. Offender classification ranges are non-jurisdictional and may be exceeded. We affirm this sentence.

W2001-01637-COA-R3-CV
W2001-01637-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: George R. Ellis

State of Tennessee v. Mila Shaw
W2001-02430-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Chris B. Craft

The defendant was found guilty by a jury of theft of property over ten thousand dollars ($10,000) and sentenced to four years and six months in the county workhouse. She contends the evidence was insufficient to sustain the conviction. We affirm the judgment of the trial court.

E2002-0445-COA-R3-CV
E2002-0445-COA-R3-CV
Trial Court Judge: William H. Inman

State of Tennessee v. Robert James Yoreck, III
M2001-02448-CCA-R3-CD
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge John H. Gasaway, III

The Appellant, Robert James Yoreck, III, was indicted by a Montgomery County grand jury for rape, a class B felony. A negotiated plea agreement allowed the Appellant to plead to class C felony aggravated assault. Following a sentencing hearing, the trial court imposed a nine-year sentence. On appeal, Yoreck argues that his sentence was excessive. After review, we find that plain error dictates the conviction be vacated and the case remanded for further proceedings because aggravated assault is not a lesser included offense of rape.

State of Tennessee v. Dennis R. Goltz
M2001-02019-CCA-R3-CD
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge Timothy L. Easter

The Appellant, Dennis R. Goltz, was convicted by a Hickman County jury of class E felony theft and sentenced to a term of two years, with sixty days to be served in confinement. On appeal, Goltz raises the following issues: (1) whether the trial court erred by removing a juror during the trial after that juror expressed concern about his ability to be fair and impartial; (2) whether he was denied a fair trial due to prosecutorial misconduct during the State's closing argument; and (3) whether his sentence was excessive based upon the trial court's failure to apply a mitigating factor. After review, we find no error with respect to issues (1) and (3). With regard to issue (2), we find that the prosecutor's closing argument affected the verdict to the prejudice of Goltz. Accordingly, the judgment of the trial court is reversed, and this case is remanded for a new trial.

State of Tennessee v. Kenneth Maurice Vaughn
M2001-03091-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Steve R. Dozier

Defendant, Kenneth Maurice Vaughn, appeals his convictions in the Davidson County Criminal Court for vandalism and aggravated criminal trespass. At his arraignment, Defendant entered a pro se plea of not guilty. During a hearing on several pretrial motions, at which Defendant proceeded pro se, Defendant signed a written waiver of his right to a trial by jury. After Defendant waived his right to a jury trial, the trial court appointed counsel to represent Defendant and scheduled a bench trial. Following a bench trial, Defendant was convicted as charged, and he received an effective sentence of eleven months and twenty-nine days for each charge, to be served consecutively. In this appeal as of right, Defendant argues that the trial court erred in accepting his jury waiver because he signed the waiver without the assistance of counsel. We conclude that Defendant was not unconstitutionally denied the right to counsel and that he made a valid waiver of his right to a jury trial. We affirm the judgment of the trial court.

Richard D. Sykes v. State of Tennessee
M2001-03115-CCA-R3-PC
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Cheryl A. Blackburn

In July 2000, pursuant to a plea agreement, the Petitioner pled guilty to eight felonies: one count of aggravated kidnapping, four counts of aggravated robbery, one count of attempted especially aggravated robbery, one count of attempted first degree murder, and one count of aggravated assault. The trial court sentenced him pursuant to the agreement to an effective sentence of twenty years with a release eligibility percentage of 30% and a concurrent sentence of twelve years with a release eligibility percentage of 100%. The Petitioner subsequently filed a petition for post-conviction relief, and following a hearing on the petition, the trial court denied relief. This appeal ensued. The Petitioner argues on appeal that he received ineffective assistance of counsel when he entered his pleas and that his pleas were thus not entered knowingly or voluntarily. Having reviewed the record, we conclude that the Petitioner was not denied his right to effective representation at the time that he entered his pleas, and we conclude that the Petitioner entered his pleas knowingly, voluntarily, and intelligently. We therefore affirm the trial court's denial of post-conviction relief.

State of Tennessee v. Jack Hackert
M2001-02687-CCA-R3-CD
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge Timothy L. Easter

The Appellant, Jack Hackert, appeals the sentencing decision of the Williamson County Circuit Court. The sentence arose from a guilty plea entered by Hackert to: (1) two counts of sale or delivery of marijuana, class E felonies; (2) simple possession of marijuana; and (3) misdemeanor possession of drug paraphernalia. Following a sentencing hearing, Hackert received an effective sentence of two years, eleven months, and twenty-nine days, with one-hundred days to be served in the county jail. On appeal, Hackert raises the single issue of whether the trial court erred by denying full probation. After review, we find no error. Accordingly, the judgment is affirmed.

Tawnya Lynn Duke v. Robert S. Duke
M2001-00080-COA-R3-CV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: Russell Heldman

Michael Glenn Binkley v. E. I. Dupont De Nemours &
M2002-00278-WC-R3-CV
Authoring Judge: Joe C. Loser, Jr., Sp. J.
Trial Court Judge: Robert E. Burch, 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 claimant insists the evidence preponderates against the trial court's finding that the employee's death did not arise out of and in the course of his employment. 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 Circuit Court Affirmed JOE C. LOSER, JR., SP. J., in which ADOLPHO A. BIRCH, JR., J., and WILLIAM H. INMAN, SR. J., joined. Charles L. Hicks, Camden, Tennessee, for the appellant, Martha Binkley, widow of Michael Glenn Binkley John R. Lewis, Nashville, Tennessee, for the appellee, E. I. Dupont De Nemours & Company MEMORANDUM OPINION The employee, Michael Glenn Binkley, initiated this civil action to recover workers' compensation benefits for a gradually occurring work related lung disease. The employer, Dupont, filed an answer. After the employee died, his widow, Martha Binkley, was substituted as plaintiff and the complaint amended to demand dependent and other death benefits. Despite the existence of sticky procedural questions, the only issue presented for trial was whether the employee's death was caused by an occupational disease resulting from exposure to fibers at work. After a trial on the merits, the trial court dismissed the claim for lack of evidence that the employee's lung disease arose out of and in the course of employment. The substituted plaintiff has appealed. We have reviewed only the issue presented to and adjudicated by the trial court. 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.

Michael Hayes v. Computer Sciences
M2001-01611-COA-R3-CV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: L. Craig Johnson
Michael Hayes sued Aerospace Contractor Support (ACS) for retaliatory discharge. He alleged that he was fired because he had filed a workers' compensation claim against a previous employer. The trial court granted summary judgment to ACS stating that the current law in Tennessee did not allow such a cause of action. We reverse the judgment of the trial court.

State of Tennessee v. Calvin M. Newsom and Eric D. White
M2001-02731-CCA-R3-CD
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge Cheryl A. Blackburn

A Davidson County jury convicted the Appellants, Calvin M. Newsom and Eric D. White, of possession of .5 grams or more of cocaine, a Schedule II controlled substance, with intent to sell; possession of alprozolam, a Schedule IV controlled substance, with intent sell; felony possession of a deadly weapon; simple possession of marijuana; and possession of drug paraphernalia. Newsom and White raise one issue for our review, whether the evidence was sufficient to support their convictions. After review, we conclude that the proof is insufficient to establish that Newsom and White possessed the drugs, drug paraphernalia, and weapons found inside the residence. Accordingly, the judgments of conviction are reversed and dismissed.

State of Tennessee v. Theddaeus Medford
W2001-02930-CCA-R3-CD
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Judge Joseph H. Walker, III

The defendant, Theddaeus Medford, was convicted by a Lauderdale County jury of two counts of the delivery of cocaine and one count of the attempted delivery of cocaine. On appeal, he raises the following issues: (1) whether two peremptory challenges by the state were in violation of Batson v. Kentucky; (2) whether the evidence was sufficient to support the guilty verdicts; and (3) whether the trial court erred in admitting exhibits upon the suggestion of the court reporter after the examination of the witnesses had concluded. We vacate the judgment of the trial court and remand for a hearing on the alleged Batson violation.

State of Tennessee v. Willie Johnson
W2001-02929-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Donald H. Allen

The defendant appeals his convictions of burglary and theft of property over five hundred dollars ($500.00). The defendant argues that the State did not present sufficient evidence at trial to support his burglary conviction and contends that he did not receive a speedy trial. We affirm the judgments from the trial court.

Douglas Edward Smitley v. Suburban Manufacturing Co.
E2002-00255-WC-R3-CV
Authoring Judge: Byers, Sr.J.
Trial Court Judge: Jeffrey Stewart, Chancellor
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann._ 5-6-225 (e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The defendant Second Injury Fund appeals the trial court's decision that the Fund is liable for seventy percent of the awarded permanent total disability to the body as a whole. We affirm the decision of the trial court. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Rhea County Chancery Court is Affirmed BYERS, SR.J., in which BARKER, J., and PEOPLES, SP.J., joined. E. Blaine Sprouse, of Nashville, Tennessee, for Appellant, Second Injury Fund. Michael Augustine Wagner, of Chattanooga, Tennessee, for Appellee, Douglas Edward Smitley. Robert J. Uhorchuk, of Chattanooga, Tennessee, for Appellee, Suburban Manufacturing Company. MEMORANDUM OPINION Review of the findings of fact made by the trial court is de novo upon the record of the trial court, accompanied by a presumption of the correctness of the finding, unless the preponderance of the evidence is otherwise. Tenn. Code Ann. _ 5-6-225(e)(2). Stone v. City of McMinnville, 896 S.W.2d 548, 55 (Tenn. 1995). The application of this standard requires this Court to weigh in more depth the factual findings and conclusions of the trial courts in workers' compensation cases. See Corcoran v. Foster Auto GMC, Inc., 746 S.W.2d 452, 456 (Tenn. 1988). Facts The plaintiff was forty-six years of age at the time of trial. He dropped out of high school in the eighth or ninth grade and does not have a graduate equivalency degree. He has worked most of his life in manual labor jobs. In 1997, before the plaintiff began working for the defendant company, he underwent lumbar diskectomy surgery to relieve pressure on a nerve root. He testified that he began having problems with his neck in 1997, caused by a "pinched nerve." Dr. Paul Broadstone, the doctor who performed the surgery, followed up with the plaintiff and reported that he was doing well. After his back surgery, the plaintiff began working for the defendant company, Suburban Manufacturing. He worked as a press operator and metal finisher. He became a permanent employee in October of 1998 after a physical examination which determined that no special accommodations needed to be made for his employment. On January 2, 1999, the plaintiff tripped over an air hose at work, falling to the floor and landing on his hip and shoulder. Suburban acknowledged this accidental injury to the plaintiff's lower back as compensable under workers' compensation law, and provided medical care and treatment for the injury. After the plaintiff's fall, he saw Dr. Broadstone and was later admitted to Erlanger Medical Center. He was ultimately treated by Dr. Scott Hodges for his low back injury of January 2, 1999. Dr. Hodges performed a diskectomy and fusion at the L5-S1 level on June 23, 1999. Dr. Hodges testified that he would assign the plaintiff a permanent physical impairment rating of five percent to the body as a whole and that his date of maximum medical improvement was January 18, 2. Dr. Hodges also testified that he placed permanent work restrictions on the plaintiff of lifting no more than thirty pounds occasionally, twenty pounds frequently, and changing positions every hour. The plaintiff returned to work on September 2, 1999, but reported continued cervical problems that were later found to have been caused by non-union in the 1997 fusion surgery. The plaintiff testified that on October 11 or 12, 1999, while performing a task that required him to bend his neck and look down in a squatted position repetitively, he felt a sudden "pop" in his neck and then the slow onset of a blinding headache. The plaintiff saw both Dr. Hodges and Dr. Broadstone again and he determined that he would not be able to return to work because of the intense neck pain he was having. Because of the continued cervical problems and non-union of the original fusion surgery the plaintiff underwent a second fusion surgery in March of 2. Dr. Broadstone assessed an additional two percent permanent anatomical impairment as a result of the second surgery. Medical Evidence -2-