Hansen vs. Steven W. Bultman, et al E2001-02664-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Dale C. Workman
In this jury case, the trial court remitted to $200,000 the jury's award of $350,000 to Albert Joseph Hansen ("Father"). The trial court's action was based upon its determination that Father had only sued for $200,000. Father appeals, contending that the trial court erred in remitting the jury's award. We affirm.
Knox
Court of Appeals
Eddie Williams vs. Dept of Corrections E2002-00306-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: Frank V. Williams, III
In this appeal from the Chancery Court for Morgan County the Petitioner/Appellant, Eddie Williams, Jr., contends that the Trial Court erred in dismissing his petition for writ of certiorari for failure to appear and prosecute. We vacate the judgment of the Trial Court and remand.
Morgan
Court of Appeals
Tammy Bowman v. Fleetwood Homes of Tennessee Inc., M2001-02188-WC-R3-CV
Authoring Judge: James L. Weatherford, Sr.J.
Trial Court Judge: J.O. Bond, Judge
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated _ 5-6- 225(e)(3) for hearing and reporting to the Supreme Court of findings of facts and conclusions of law. The employer appeals the judgment of the trial court awarding the employee 5% permanent partial disability for a right shoulder injury, even though the parties had stipulated prior to trial that this injury was not at issue. The employer further appeals the trial court's ruling combining a 2% vocational disability rating to the arm, which is a scheduled member, with the 5% anatomical impairment rating for the shoulder, which is to the body as a whole, then multiplying both by the 2.5 maximum pursuant to Tennessee Code Annotated _ 5-6-241(a)(1). We hold that the trial court erred in awarding permanent partial disability for the right shoulder because both parties had stipulated that it was not at issue and because no expert testimony supported a finding of permanency. Accordingly, we reverse the judgment of the trial court awarding workers' compensation benefits based upon an injury to the employee's shoulder. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Criminal Court Reversed. JAMES L. WEATHERFORD, SR.J., in which JANICE M. HOLDER, J., and JOE C. LOSER, SP.J., joined. John R. Lewis, Nashville, Tennessee, for the appellants, Fleetwood Homes of Tennessee Inc., and Kemper Insurance Companies. B. Keith Williams, Lebanon, Tennessee, for the appellee, Tammy Bowman. MEMORANDUM OPINION At the time of trial, Ms. Tammy Bowman, the employee-appellee, was a 34 year old divorced mother of two children. She has an 11th grade education and her primary work experience has been in manual labor. She has worked for Fleetwood Homes of Tennessee Inc. ("Fleetwood"), the employer-appellant, since 1992. Ms. Bowman first noticed a problem with her right shoulder and arm in March of 2, while working for Fleetwood. The majority of Ms. Bowman's work day was spent continuously gripping a caulking gun with her right hand, mopping walls, and cleaning overhead mirrors with her right arm in an overhead position. On May 11, 2, Ms. Bowman was referred to Dr. Jeffrey E. Hazlewood, whose examination revealed some tenderness in her anterior shoulder region. However, he found that Ms. Bowman had normal range of motion in her shoulder with no pain, no shoulder impingement, and no swelling or redness. Dr. Hazlewood concluded that the neurological exam "showed no abnormalities with normal strength, sensation, and reflexes." Dr. Hazlewood's ultimate diagnosis was right wrist and shoulder tendonitis for which he recommended physical therapy. After further complaints of pain in her shoulder, Dr. Hazlewood performed an EMG nerve test on June 14, 2, that returned normal results. Dr. Hazlewood testified in deposition that Ms. Bowman did not have any permanent impairment pursuant to the AMA Guides. Therefore, he did not assign any anatomical ratings for the shoulder or wrist. Dr. Hazlewood testified that Ms. Bowman had legitimate pain in her shoulder, but that she was able to perform at work and home with no restrictions. On November 14, 2, Ms. Bowman saw Dr. Francisca Lytle for an independent medical evaluation at the request of Ms. Bowman's counsel. Dr. Lytle assigned a 1% impairment rating to the right extremity based on decreased grip strength attributed to wrist tendonitis. Dr. Lytle attributed this injury to Ms. Bowman's repetitive use of a caulking gun while working at Fleetwood. Dr. Lytle testified that she would have recommended permanent restrictions in regards to any activity that required a gripping motion. In regard to the shoulder, Dr. Lytle performed several tests that revealed mild shoulder tendonitis that she believed Ms. Bowman incurred while working. Dr. Lytle found soreness in the shoulder, but she also found a normal range of motion and no evidence of instability. She also testified that she would recommend not working in an overhead position because that would aggravate the shoulder tendonitis. Based on her evaluation, Dr. Lytle did not believe that the injury to Ms. Bowman's shoulder was permanent. She also testified that the overhead restrictions "may actually not" be permanent. She also believed that a change in Ms. Bowman's sleeping posture would alleviate the shoulder pain. -2-
Macon
Workers Compensation Panel
Express Personnel Services, Inc. v. Donna M. Belcher M2001-02033-WC-R3-CV
Authoring Judge: Joe C. Loser, Jr., Sp. J.
Trial Court Judge: Carol L. Mccoy, Chancellor
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel in accordance with Tenn. Code Ann. _ 5-6-225(e)(3) for hearing and reporting of findings of fact and conclusions of law. In this appeal, the employer contends that the trial court improperly considered the claimant's criminal record, her responsibility for five children, her lack of reliable transportation, and her financial need in determining the claimant's vocational disability rating. As discussed below, the panel has concluded that 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 FRANK F. DROWOTA, III, C. J., and TOM E. GRAY, SP. J., joined. Fred C. Statum, Nashville, Tennessee, for the appellant, Express Personnel Services, Inc. Andrew J. Blackwell, III, Madison, Tennessee, for the appellee, Donna M. Belcher MEMORANDUM OPINION The employee or claimant, Belcher, is thirty-seven years old and a high school graduate. Her work experience has primarily been in production, but she has also been a cook and waitress. She has a felony drug-trafficking conviction and two assault convictions. The claimant began working for the appellant, Express Personnel Services, Inc., in March of 2 at Dominos Pizza National Distribution Center. In June of the same year, she suffered a hyper extension injury to both wrists when she attempted to catch a falling stack of twenty to thirty trays. The parties stipulated that the injury occurred in the course of the claimant's employment and that notice of the injury was properly given to the employer. Once she began undergoing treatment for her injury, she did not return to her job at Dominos. The claimant underwent physical therapy and a right carpal tunnel release. After the surgical release was performed, the claimant developed clenched-fist syndrome in which she could not open her right hand. With physical therapy, the condition of the right hand improved, but the claimant testified that she still experiences pain and numbness in both hands. In April 21, her treating physician released her at maximum medical improvement, assessing her anatomic impairment at five percent to both upper extremities. The claimant's physician restricted her from repetitive use or heavy gripping of the right hand, and from more than occasional bilateral heavy gripping. Additionally, he recommended that she avoid repetitive work or other activity that causes pain in her hands. At trial, the claimant and two corroborating witnesses testified the claimant suffered from pain in her hands and was unable to perform manual tasks she had been able to perform before her injury. The trial court awarded permanent partial disability benefits based on 6 percent to both arms. The chancellor specifically found that the claimant would be unable to obtain employment that involved security or cash-handling because of her prior felony conviction. This is a case of first impression in Tennessee. It raises the question of whether an employer's liability should be reduced because a claimant's criminal history affects the availability of employment to the claimant. Stated in the reverse, the question is whether a claimant's criminal record is a pertinent factor that should be weighed by the court when determining the extent of a claimant's vocational disability. In determining the extent of an injured worker's vocational disability, a trial court is to weigh the anatomic impairment rating, lay and expert testimony, and pertinent factors such as "the employee's skills and training, education, age, local job opportunities and his capacity to work at the kinds of employment available in his disabled condition." Corcoran v. Foster Auto GMC, Inc., 746 S.W.2d 452, 458-59 (Tenn. 1988) (quoting Robertson v. Loretto Casket Co., 722 S.W.2d 38, 384 (Tenn. 1986). The appellant claims that the permanent partial disability award is excessive because the trial court improperly considered factors such as the claimant's criminal record, her responsibility for five children, her lack of reliable transportation, and her financial need. While the appellant is correct in asserting that a claimant's financial need and domestic responsibilities are not appropriate factors to be considered in determining vocational disability, the trial court did not base its decision thereon. A careful reading of the trial court's order reveals that the court actually based the claimant's sixty percent permanent partial disability upon only the following factors: the claimant's uncontroverted medical impairment rating, her education, her employment history, her testimony regarding the tasks she can no longer perform as a result of her injury, and the impact her criminal -2-
The appellants, Kenneth P. Bondurant and Hugh Peter Bondurant, appeal from the dismissal of their post-conviction petitions following a hearing on the question of whether the petitions were filed within the time prescribed under Tennessee Code Annotated section 40-30-202(a). The trial court found from the evidence presented that the petitions were filed more than one year from the final action of the highest appellate court to which an appeal was taken and that the petitions were time barred. As a result the petitions were dismissed.
In this appeal the appellants present two issues for our consideration. First, the appellants challenge whether the trial court erred in finding that the first post-conviction petitions filed by the appellants from prison were mailed beyond the applicable statute of limitations. Second, the appellants ask us to interpret Tennessee Code Annotated section 40-30-202(a) so as to begin the running of the statute of limitations from the date the highest appellate court's mandate is filed on direct appeal. We find no error in the findings of the trial court, and we decline to interpret Tennessee Code Annotated section 40-30-202(a) in the manner urged by the appellants. Accordingly, the judgment of the trial court is affirmed.
Giles
Court of Criminal Appeals
Christopher Pope v. Dept of Correction M2001-02937-COA-R3-CV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: Carol L. Mccoy
A prisoner in the custody of the Department of Correction was found guilty of a disciplinary offense and sentenced to punitive segregation. He subsequently filed a Petition for Writ of Certiorari, claiming that he was not afforded due process during the disciplinary hearing at which he was convicted. The trial court dismissed his Petition for failure to state a claim. We affirm the trial court.
Davidson
Court of Appeals
Penny Taylor v. Christy Sowell M2002-00535-COA-R3-JV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Betty K. Adams
Christy Sowell appeals an Order terminating her parental rights as to her child, S.P.S. The trial court, finding abandonment by willful failure to support and willful failure to visit the minor child, entered an Order terminating her parental rights. We affirm the action of the trial court.
Davidson
Court of Appeals
John A. Higginbotham v. Anne Cleve M2002-00899-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: J. B. Cox
Anne Cleve appeals, pro se, the action of the trial judge in refusing to set aside a judgment entered against her enforcing a foreign judgment entered in the Circuit Court of Madison County, Alabama. We affirm the action of the trial judge.
Lincoln
Court of Appeals
Lakewood Park Trusteeship v. Ramsey Johnson M2002-00244-COA-R3-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: John Wiley Rollins
The trustees of a residential/recreational development sued the owner of a number of lots in the development for failure to pay assessments for several years. The owner appeals arguing there was insufficient proof he received the notices for the years in question. We affirm the trial court's judgment in favor of the trustees.
Coffee
Court of Appeals
In the Matter of: A.W. & J.W. M2002-01665-COA-R3-JV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: Barry Tatum
The Juvenile Court of Wilson County terminated the parental rights of both parents to two young daughters. The mother appeals, asserting that the court erred in finding: (1) that the Department of Children's Services made reasonable efforts to reunite the family, (2) that she failed to substantially comply with the goals in the permanency plans, (3) that she failed to remedy the conditions that prevented the children's return to her, and (4) that the best interests of the children required the termination of her parental rights. We affirm the judgment of the juvenile court.
Wilson
Court of Appeals
Antonio Young v. State of Tennessee E2001-00761-CCA-R3-PC
Authoring Judge: Judge J. Curwood Witt, Jr.
Trial Court Judge: Judge Douglas A. Meyer
Antonio Young appeals the Hamilton County Criminal Court's denial of his petition for post-conviction relief. The lower court found his allegations of ineffective assistance of counsel unsupported by the evidence and denied relief. Because we are unpersuaded of error, we affirm.
Hamilton
Court of Criminal Appeals
08-99-0024-CC 08-99-0024-CC
Trial Court Judge: A. Andrew Jackson
The Defendant, Dianna Helton Hord, pled guilty to driving under the influence and driving on a revoked license. As part of her plea agreement, she expressly reserved with the consent of the trial court and the State the right to appeal a certified question of law pursuant to Tennessee Rule of Criminal Procedure 37(b)(2)(i). The certified question of law stems from the trial court's denial of the Defendant's motion to suppress. We affirm the judgment of the trial court.
A Williamson County jury convicted the defendant, Frederick H. Gonzales, Jr., of selling cocaine in an amount of .5 grams or more and assessed a fine of $50,000. The trial court sentenced the defendant to serve nine years as a Range I offender and reduced his fine to $5,000. The defendant now brings this appeal, challenging the trial court's failure to grant his motion for new trial on the basis that (1) evidence of a prior bad act committed by the defendant was improperly admitted at trial and that (2) the state improperly referred to the defendant's failure to call witnesses in closing arguments. Because we find that (1) the defendant opened the door to the prior bad act testimony and waived this issue by failing to object at trial and that (2) the prosecutor's reference to missing witnesses was harmless error, we affirm the judgment of the trial court.
Williamson
Court of Criminal Appeals
State of Tennessee v. Ronald Dotson W2001-02548-CCA-MR3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Joseph B. Dailey
The defendant appeals his sentence of life imprisonment without parole as a repeat violent offender because he was not tried within 180 days of arraignment. Because the defendant did not prove that he suffered prejudice from the delay in bringing his case to trial, we affirm the decision of the trial court.
Shelby
Court of Criminal Appeals
State v. Kenneth Stewart E2001-02117-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Douglas A. Meyer
Hamilton County -The Defendant, Kenneth Ray Stewart, was convicted by a Hamilton County jury of one count of attempted sexual battery. The trial court sentenced the Defendant to eleven months and twenty-nine days in the Hamilton County Workhouse, suspended the sentence, and ordered that the Defendant serve the sentence on supervised probation. Conditions of probation included counseling pursuant to a sex offender clinical evaluation and no contact with the victim. On appeal, the Defendant presents three issues for our review: (1) whether the trial court erred by allowing testimony by State witness Virgie Redden under the excited utterance exception to the hearsay rule; (2) whether the trial court erred by allowing the State to use leading questions during direct examination of the victim; and (3) whether the evidence was insufficient as a matter of law to support the Defendant's conviction for attempted sexual battery. Finding no reversible error, we affirm the judgment of the trial court.
State v. Jamey Cheek E2001-02977-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Mary Beth Leibowitz
The Defendant pled guilty to aggravated assault, leaving the manner of service of his sentence to the discretion of the trial court. Following a sentencing hearing, the trial court denied alternative sentencing. The Defendant now appeals the trial court's decision, arguing (1) that the trial court erred by excluding two documents as exhibits at the sentencing hearing, or, in the alternative, that he should have been granted a continuance on the day of the hearing; and (2) that the trial court erred by denying his application for probation. Finding no error, we affirm the judgment of the trial court.
Mable Calhoun v. Quebecor Printing, Inc. E2001-00839-WC-R3-CV
Authoring Judge: Byers, Sr.J.
Trial Court Judge: John S. Mclellan, III, 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 appeals the trial court's decision to award the plaintiff temporary total disability benefits for the period of May 19, 1999, through January 5, 2, and to award fifty- five percent permanent partial 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 Sullivan County Chancery Court is Affirmed BYERS, SR.J., in which ANDERSON, J., and THAYER, SP.J., joined. Steven H. Trent, of Johnson City, Tennessee, for Appellant, Quebecor Printing, Inc. Tony A. Seaton, of Johnson City, Tennessee, for Appellee, Mable Calhoun. 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 fifty-eight years of age at the time of trial. She has completed the tenth grade and also has earned a general equivalency degree. She has no vocational or specialized training. She is married and her husband is retired. They have no dependent children. The plaintiff began working for the defendant company in 1983. The company, which was then known as Kingsport Press, Inc., is primarily engaged in the manufacture of books. In her seventeen years with the defendant company, the plaintiff worked in a variety of positions. At the time of the injury that is the basis for her claim in this case, she was employed as a sewing machine operator. The plaintiff testified that on July 27, 1997, she was attempting to move a palate or "skid," which was part of the duties of her position. While doing so, her foot became caught between two of the palates, causing her to fall and injure her back and right leg. She reported her injury to her supervisor and worked the remainder of her shift. The evening of the accident, the plaintiff went to the emergency room and was diagnosed with a lumbosacral strain. In the days following the July 27 accident, the plaintiff continued to work but experienced pain in increasing frequency and severity, so her supervisor offered her a panel of three physicians from which to choose a physician to see. The plaintiff chose Dr. John Marshall and first saw him on July 3, 1997, for examination and treatment. Dr. Marshall placed several temporary work restrictions on the plaintiff and returned her to work. The plaintiff continued to see Dr. Marshall throughout 1997. After months of the plaintiff's continued working under restrictions while receiving treatment, Dr. Marshall determined that she had reached maximum medical improvement on January 26, 1998, and assessed permanent partial disability at ten percent to the body as a whole. During her course of treatment with Dr. Marshall, the plaintiff also saw Dr. Fred Killeffer, a neurosurgeon. Dr. Killeffer examined the plaintiff and agreed with Dr. Marshall's assessment of a ten percent impairment to the body as a whole. The plaintiff continued to have severe pain in her back and right leg, but Dr. Marshall and Dr. Killeffer recommended against surgery. The plaintiff then sought treatment from Dr. Gregory Corradino, a non-panel physician. Contrary to the opinions of Dr. Marshall and Dr. Killeffer, Dr. Corradino recommended surgery be performed on the plaintiff's back. This surgery was not authorized by her employer. She continued to work for the defendant company until May 19, 1999, when she left work for the unauthorized surgery. On May 27, 1999, Dr. Corradino performed a hemi-laminotomy and diskectomy on the plaintiff. Following the plaintiff's surgery, she testified that her condition was relatively unchanged, and that the surgery provided no significant improvement in her symptoms. Dr. Corradino found that the plaintiff had reached maximum medical improvement "relative to her surgery", on January 5, 2. He assessed her a fifteen percent impairment to the body as a whole. She continued to see -2-
The defendant appeals her sentence of confinement after pleading guilty to theft under $500.00, a Class A misdemeanor, in violation of Tennessee Code Annotated section 39-14-103. The trial court sentenced the defendant to 11 months, 29 days at 75% release eligibility, with 150 days of shock incarceration. The defendant argues that the trial court erred in not granting her full probation. However, the defendant did not meet her burden necessary to prove the impropriety of her sentence. Our supreme court acknowledges that trial courts have more flexibility in misdemeanor sentencing than in felony sentencing. Given the defendant's prior criminal history and the flexibility granted to trial courts in misdemeanor sentencing, the judgment of the trial court is affirmed.
The appellant, Michael Cammon, was convicted in a jury trial of robbery, aggravated assault and possession of over 300 grams of cocaine with the intent to sell or deliver. He was also convicted of felony possession of a weapon. For these offenses the appellant received sentences of three years, three years, twenty-two years, and two years, respectively. All sentences were set to run concurrently with each other, but consecutively to any previous sentences the appellant might have to serve. In this appeal he raises three issues for our consideration. First, he claims the evidence is insufficient to corroborate the testimony of his accomplice. Secondly, he alleges that the trial court erred in failing to instruct the jury with respect to the amount of controlled substance required for the offense charged. Finally, the appellant complains that the trial court erred in failing to instruct the jury on the lesser-included offense of simple assault. We find no reversible error with respect to the narcotics offense or with respect to the conviction for aggravated robbery. Those convictions are affirmed. However, we must reverse the conviction for aggravated assault and remand this case for a new trial.
The defendant, Romania Ann Gadson, pled guilty in the Montgomery County Circuit Court to seven felonies. While she was on probation for those crimes, the defendant committed and was convicted of three additional felonies and one misdemeanor. After a sentencing hearing, the trial court revoked the defendant's probation, determined that her effective sentence for the "old" convictions was twelve years, and ordered that she serve the twelve-year sentence in incarceration. The trial court also sentenced the defendant to an effective sentence of five years in confinement for the "new" convictions and ordered that she serve the five-year sentence consecutively to the twelve-year sentence. The defendant appeals, claiming (1) that the trial court incorrectly calculated the effective sentence for her old convictions to be twelve years; (2) that the trial court erred in sentencing her to the maximum punishment in the range for one of her new convictions; and (3) that she should have received a community corrections sentence for her new convictions. As to the defendant's claim that the trial court incorrectly calculated her twelve-year sentence, we remand the judgments of conviction to the trial court. As to the defendant's new convictions, we conclude that the trial court properly sentenced the defendant and affirm those judgments of conviction.
Following a jury trial, Defendant, Aaron Lembar Smith, was found guilty of two counts of Class D felony burglary (a building other than a habitation), one count of Class E felony vandalism, two counts of Class D felony theft, and one count of Class D felony vandalism. One of the burglaries, the Class D felony vandalism, and one of the Class D felony thefts, involved an incident which occurred at Centennial Elementary School in Dickson. The other charges involved an incident at Buckner City Park, which is located on property adjoining Centennial Elementary School. In this appeal, Defendant challenges the sufficiency of the evidence to sustain his convictions for the burglary, vandalism, and theft convictions arising from the incident at Centennial Elementary School. He does not challenge the sufficiency of the evidence, or raise any other issues, regarding the remaining charges. After a thorough review of the record, we affirm the convictions for burglary, vandalism, and theft regarding the incident at Centennial Elementary School. However, our review of the record indicates errors in the judgments; as the sentencing hearing is not a part of the record, but the judgments on their face are erroneous, we remand these cases to the Circuit Court of Dickson County for amended judgments to be entered or for a new sentencing hearing, if necessary.
The Blount County Grand Jury indicted the Defendant for second degree murder, and following a trial, a Blount County jury convicted the Defendant of reckless homicide. The trial court sentenced the Defendant as a Range I, standard offender to four years for the crime and ordered that she serve her entire sentence in confinement. In this appeal as of right, the Defendant argues that she was improperly sentenced. Specifically, she contests the length of her sentence, and she contends that she should have been granted some form of alternative sentencing. Having reviewed the record, we conclude that the trial court did not err in sentencing the Defendant, and we therefore affirm the sentence imposed.
