Petitioner appeals the summary dismissal of his petition for habeas corpus relief which alleged that the charges against him were untrue, that the statutes of limitations as to the charges had expired before he was charged, and that his counsel was ineffective. The post-conviction court determined that the allegations contained in the petitioner's pro se petition did not entitle him to habeas corpus relief. After careful review of the record, we affirm the dismissal of the petition.
Lauderdale
Court of Criminal Appeals
Lori Ann Prosser v. Bedford County Board of Education M2000-02424-WC-R3-CV
Authoring Judge: Joe C. Loser, Jr., Sp. J.
Trial Court Judge: F. Lee Russell, Judge
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, Bedford County Board of Education, insists (1) the trial court erred in finding the employee provided the employer with proper notice of her injury, (2) the award of permanent partial disability benefits based on 42 percent to the body as a whole is excessive, (3) the trial court erred in awarding temporary total disability benefits for the period of April 4, 1996 through September 4, 1998, for a total of 129 weeks, (4) the trial court erred in ordering the employer to be responsible for the bills of non-approved physicians, and (5) the trial court erred in ordering the employer to reimburse the carriers who already partially paid the medical bills, even though they were not parties to the case. As discussed below, the panel has concluded the award of medical benefits to non- parties should be vacated, the award of temporary total disability benefits modified and the judgment otherwise affirmed. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Circuit Court Vacated in part; Modified in part; Affirmed in part; Remanded. JOE C. LOSER, JR., SP. J., in which ADOLPHO A. BIRCH, JR., J., and JAMES WEATHERFORD, SR. J., joined. Kent E. Krause and Gordon C. Aulgur, Nashville, Tennessee, for the appellant, Bedford County Board of Education. Andrew C. Rambo, Shelbyville, Tennessee, for the appellee, Lori Ann Prosser. MEMORANDUM OPINION The employee or claimant, Lori Ann Prosser, worked for the employer as a school bus driver. On March 14, 1996, she ran her early morning route and had parked her bus at Central High School to drive students on a field trip. She conducted a pre-trip inspection, which included cleaning out the bus and checking the oil, then went outside to have coffee with her co- workers. When she bent over to set her coffee down, she felt immediate pain starting in her back and going down her right leg. She drove her bus on the field trip without notifying the employer of her injury. After the field trip, she called her supervisor, Tim Fleming, and, according to her testimony, told him she hurt her back while preparing for the field trip and needed to see a doctor. Fleming remembered having the conversation, but testified that the claimant never told him that she had a job related injury. The trial judge believed the claimant. After continuing to work for two more weeks, then again contacting Fleming, the claimant reported to a Murfreesboro emergencyroom and was referred to Dr. Robert Weiss. An MRI, ordered by Dr. Weiss, revealed disc herniations at L4-5 and L5-S1. Dr. Weiss performed corrective surgery on April 24, 1996. A second surgical procedure was performed five days later. When the employer failed to provide medical care and the claimant's disabling pain was not relieved, the claimant sought out Dr. Robert McCombs on October 28, 1996. Dr. McCombs performed a third surgical procedure on April 1, 1997 and provided follow-up care until December 1, 1997, when, the doctor reported, the claimant reached maximum medical improvement. His final diagnosis was chronic lumbar radiculopathy and he estimated her permanent impairment at 13 percent to the whole body. Dr. McCombs also restricted her from lifting more than 2 pounds at all or more than 5 pounds repetitively and from prolonged bending, twisting or stooping. When the claimant continued to have back problems and an MRI scan revealed a recurrent disc herniation at L5-S1, a fourth surgery was performed on September 24, 1998. She reached maximum medical improvement from that surgery on February3, 1999 and Dr. McCombs estimated her permanent impairment at 14 percent to the whole body. The claimant continues to take medication and is severely limited in her activities, including driving. She has not returned to work. The record contains conflicting lay proof. Her husband and a friend support the claimant's testimony, but two other bus drivers testified that the claimant did not appear to be injured on the date of the accident. Upon the above summarized evidence, the trial court awarded temporary total disability benefits from April 4, 1996 through September 24, 1998, ordered the employer to pay the bills of the named physicians and to reimburse any non-party health insurance carrier that had paid the bills in part, without naming the carrier or the amount of the award, and awarded permanent partial disability benefits based on 42 percent to the body as a whole. Appellate review is de novo upon the record of the trial court, accompanied by a presumption of correctness of the findings of fact, unless the preponderance of the evidence is otherwise. Tenn. Code Ann. _ 5-6-225 (e) (2). This tribunal is not bound by the trial court's findings but instead conducts an independent examination of the -2-
Petitioner, John Clark Garrison, filed a petition for post-conviction relief attacking his two convictions for theft of property over the value of $10,000.00 but less than $60,000.00. Petitioner was represented by counsel who filed the petition for post-conviction relief on his behalf. The State filed a response to the petition. The trial court dismissed the petition without an evidentiary hearing, finding that all of the issues were either previously determined, waived, insufficient to assert specific allegations of ineffective assistance of counsel, or presented no question of constitutional deprivation. We affirm the judgment of the trial court.
The petitioner appeals from the post-conviction court's summary dismissal of his post-conviction relief petition for failing to be properly verified under oath. The issue is whether a petition for post-conviction relief must be verified under oath and whether the petitioner's "affidavit and sworn statement" was sufficient to satisfy that requirement. We conclude that the post-conviction court was correct in summarily dismissing the petition for failing to be properly verified under oath.
Washington
Court of Criminal Appeals
George R. Lee v. T.I.G. Insurance, E2000-02726-WC-R3-CV
Authoring Judge: John K. Byers, Sr. J.
Trial Court Judge: Harold Wimberly, Chancellor
The trial court based its findings on both the lay and expert testimony_notably the fact that the employee had been performing his job for seventeen or eighteen years and as a result of the incident was unable to continue in his position because of his age. The trial court also noted the plaintiff's "obvious limitations as to education and intellectual ability" as well as the vocational disability experts opinions that the plaintiff's occupational loss was between 45 and 8%. The evidence does not preponderate against the trial court's findings in this regard. The judgment of the trial court is affirmed.
Knox
Workers Compensation Panel
Maggie Jean Hicks v. Kroger Food Stores, Inc., E2000-01449-WC-R3-CV
Authoring Judge: John K. Byers, Sr. J.
Trial Court Judge: James B. Scott, Jr., Judge
The plaintiff filed a petition under Tennessee Code Annotated _ 5-6-241(a)(2) for reconsideration of her previous workers' compensation award, which was awarded to her by an order dated March 25, 1999 and which limited her to an award of seventeen percent based upon the two and one-half times the medical impairment rating she sustained as a result of an injury on December 12, 1996, because she returned to work at a rate of pay equal to or greater than what she received prior to the injury. The trial judge found the plaintiff could properly file for reconsideration and increased the amount of the plaintiff recovery from seventeen percent permanent partial vocational disability to forty percent partial vocational disability. We reverse the judgment of the trial court.
The Defendant was convicted by a jury of first degree premeditated murder and sentenced to life imprisonment without parole. His conviction and sentence were affirmed on direct appeal. See State v. Richard Burt McKee, No. 01C01-9606-CC-00278, 1998 WL 155558, at *1 (Tenn. Crim. App., Nashville, Mar. 31, 1998). The Defendant filed for post-conviction relief in December 1998 alleging that he received ineffective assistance of counsel at trial and on appeal and that juror misconduct during deliberations entitles him to a new trial. The post-conviction court denied relief after an evidentiary hearing. The Defendant now appeals as of right. Finding no merit in the Defendant's contentions, we affirm the post-conviction court's judgment.
The Davidson County Grand Jury indicted the Petitioner for one count of rape and one count of assault. The Petitioner's first trial ended with a hung jury. Following a second trial, the Petitioner was convicted of rape and assault, and sentenced to an effective thirty years of incarceration. His convictions and sentences were upheld on direct appeal. See State v. George D. Fitzpatrick, No. 01C01-9709-CR-00398, 1998 WL 775665 at *1, Davidson County (Tenn. Crim. App., Nashville, Nov. 4, 1998), perm. to appeal denied (Tenn. 1999). Subsequently, the Petitioner filed a timely petition for post-conviction relief alleging ineffective assistance of counsel at his trial. After a hearing the court below dismissed the petition, from which ruling the Petitioner now appeals. Upon our review of the record, we affirm the judgment of the post-conviction court.
Davidson
Court of Criminal Appeals
State vs. Kermit Maurice Cozart W1999-00022-SC-R11-CD
Authoring Judge: Justice Janice M. Holder
Trial Court Judge: Julian P. Guinn
We granted review of this case to decide whether a trial court must instruct the jury based upon this Court's holding in State v. Anthony, 817 S.W.2d 299 (Tenn. 1991). We hold that the trial court properly declined to instruct the jury that it should determine whether the confinement, movement, or detention inherent in the kidnapping was essentially incidental to the accompanying robbery. Applying the principles first enunciated in Anthony, we further hold that the dual convictions for aggravated robbery and aggravated kidnapping in this case do not violate due process. Accordingly, we affirm the judgment of the Court of Criminal Appeals.
The appellant, Melvin E. Beard, was convicted in the Williamson County Circuit Court of one count of the sale and delivery of less than .5 grams of crack cocaine, a class C felony. The trial court sentenced the appellant to ten years incarceration in the Tennessee Department of Correction and imposed a fine of two thousand dollars ($2000). On appeal, the appellant raises the following issues for our review: (1) whether the evidence at trial was sufficient to sustain the appellant's conviction; (2) whether the trial court erred in allowing the State to introduce the portion of an audio tape recording of the drug transaction that occurred outside the presence of the appellant; (3) whether the trial court erred in refusing to grant the appellant's motion for mistrial; and (4) whether the trial court erred in sentencing the appellant. Upon review of the record and the parties' briefs, we affirm the judgment of the trial court.
The petitioner, Deborah Louise Reese, pled guilty in the Rutherford County Circuit Court to one count of felony murder, one count of especially aggravated robbery, and one count of conspiracy to commit especially aggravated robbery. The trial court sentenced the petitioner to a total effective sentence of life imprisonment. Thereafter, the petitioner filed a petition for post-conviction relief alleging that she received ineffective assistance of counsel and that her guilty pleas were neither voluntarily nor knowingly made. Following an evidentiary hearing, the post-conviction court dismissed the petition. The petitioner now appeals this ruling. Upon review of the record and the parties' briefs, we affirm the judgment of the post-conviction court.
Rutherford
Court of Criminal Appeals
Larry Wade v. State of Tennessee M2000-01260-CCA-R3-PC
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Seth W. Norman
The petitioner, Larry Wade, appeals the denial of his petition for post-conviction relief by the Criminal Court for Davidson County. He asserts that the ineffective assistance of counsel and the unknowing and involuntary nature of his guilty pleas entitle him to relief from his convictions of attempted second degree murder and possession of one-half gram or more of cocaine with intent to sell. Following a review of the record and the parties' briefs, we affirm the judgment of the post-conviction court.
On September 25, 1998, the petitioner entered best interest pleas to four counts of child rape. For these offenses he received concurrent sixteen year sentences. According to the announced plea the convictions arising out of Pickett and Overton Counties were set to be served at thirty percent while the Putnam County convictions were at one hundred percent with the potential to be reduced to eighty-five percent. Within the statute of limitations the petitioner filed a post-conviction petition alleging that his plea was not knowingly and voluntarily entered concerning the consequences thereof. Subsequently, the trial court conducted a hearing and later denied the relief sought in the petition. It is from that denial that the petitioner brings the present appeal continuing to maintain that his plea was not knowingly and voluntarily entered. After reviewing the record and applicable caselaw, we find that the sentences imposed are illegal and, therefore, reverse and remand the matter.
Putnam
Court of Criminal Appeals
Lisa Heath vs. Memphis Radiology W2000-02770-COA-R3-CV
Authoring Judge: Judge W. Frank Crawford
Trial Court Judge: Robert L. Childers
This is a medical malpractice case. Plaintiff sued physician, radiological group and hospital, alleging failure to discover and diagnose her malady resulting in permanent physical impairment. The trial court entered judgment for the defendants on a jury verdict, and plaintiff appealed asserting evidentiary errors and the failure of the trial judge to perform his duty as the thirteenth juror. We affirm
Shelby
Court of Appeals
Estate of James Kirk vs. James Lowe W2000-02858-COA-R9-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: C. Creed Mcginley
The Plaintiffs in this case sued "John Doe," an unknown driver, for injuries and damages resulting from the death of Plaintiffs' decedent. Process was served on decedent's uninsured motorist insurance carrier pursuant to Tennessee's Uninsured Motor Vehicle Coverage statutes. More than one year after the accident, the identity of the "John Doe" was discovered and Plaintiffs filed an amended complaint, naming him as Defendant. The Defendant moved for summary judgment on the basis that he was never an uninsured motorist, but at all pertinent times was insured, and that the one-year statute of limitations had expired. The trial court denied the motion, and we reverse.
Benton
Court of Appeals
Shirley Pegues vs. Lester Graves W2000-02831-COA-R3-CV
Authoring Judge: Judge W. Frank Crawford
Trial Court Judge: Kay S. Robilio
Plaintiffs, husband and wife, sued physician when wife became pregnant after physician had performed a pregnancy avoidance procedure and allegedly guaranteed the results thereof. Defendant moved for a directed verdict which the trial court granted, but plaintiffs contend that it was granted after plaintiffs took a nonsuit. Plaintiffs appeal. We reverse.
Shelby
Court of Appeals
Laquita Ailsworth vs. Autozone W2000-03024-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Robert A. Lanier
This appeal arises from the fall of the Appellant outside the Appellee store. The Appellant filed a complaint against the Appellees in the Circuit Court of Shelby County alleging that her injuries were proximately caused by the Appellees' negligence in allowing an icy condition to exist on the walkway in front of the store. The Appellees filed motions for summary judgment. The trial court granted the Appellees' motions for summary judgment. The Appellant appeals the grant of summary judgment in favor of the Appellees by the Circuit Court of Shelby County. For the reasons stated herein, we reverse the trial court's decision.
Shelby
Court of Appeals
Union Planters vs. Bettye Dedman W2001-00411-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Robert S. Benham
This case is a dispute over the correct valuation of the residuary portion of Testator's estate for purposes of determining whether it was sufficient to pay estate taxes where Testator had directed by Will that such taxes be paid from the residuary. Testator's executor submits that the correct valuation date is the date of death; that neither post-death income nor appreciation of assets in the residuary should be included in the valuation; that income tax paid by the estate on income with respect to a decedent (IRD) should be included in a calculation of the death tax fund deficiency; that attorney's fees incurred as a result of protracted litigation should be included in the death tax fund deficiency calculation. Executor asks us to determine whether such deficiencies are apportionable among those receiving gifts passing outside of probate. We hold that the correct valuation date of the residuary for the purpose of determining its sufficiency to pay the death taxes is the date of Testator's death. Post-death increases should not be utilized. If the residuary on the date of death was insufficient to pay the estate taxes, these taxes are apportionable among all those interested in the estate. We further hold that although the IRD income tax and attorney's fees reduce the estate, they are not includible in the death tax fund deficiency so as to be apportionable to recipients of out of probate transfers.
Shelby
Court of Appeals
Terry Littlejohn vs. Bd. of Public Utilities W2001-00011-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: C. Creed Mcginley
This appeal arises from the personal injuries sustained by the Appellant as a result of an electrical shock he received while roofing a house in Henry County, Tennessee. The Appellant filed a complaint against the Appellee under the Governmental Tort Liability Act in the Circuit Court of Henry County. Following a bench trial, the trial court assessed thirty-five percent of the fault to the Appellant and sixty-five percent of the fault to the Appellee. The trial court found that the total amount of damages sustained by the Appellant was $25,000.00. The trial court reduced the total amount of damages by thirty-five percent which resulted in an award of damages to the Appellant in the amount of $16,250.00. The Appellant appeals the decision of the Circuit Court of Henry County assessing thirty-five percent of the fault to the Appellant and awarding damages in the amount of $16,250.00. For the reasons stated herein, we affirm in part and reverse in part the trial court's decision.
Henry
Court of Appeals
Alfred Earl Vincent vs. Cheryl Lynn Vincent E2000-02529-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Frank V. Williams, III
In this divorce case, the Trial Court awarded custody of the minor child to father and divided the parties' marital assets. The wife appealed and we affirm.
Morgan
Court of Appeals
Direct Insurance Co. vs. George Brown E2001-00412-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Richard E. Ladd
Trial Court declared coverage under policy issued by plaintiff to defendant for a motor vehicle accident, holding the vehicle operated by defendant was a replacement vehicle. On appeal, we reverse.
Sullivan
Court of Appeals
James Collins vs. Summers Hrdwe & Supply Co. E2001-00578-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: Thomas J. Seeley, Jr.
This is a suit by Plaintiffs James A. Collins and Gary Smith seeking damages from their former employer, Summers Hardware and Supply Company, in connection with their employment. The Plaintiffs contend that Summers Hardware made certain deductions from their pay which were contrary to their employment contract. Summers Hardware asserts otherwise. A jury found this issue in favor of the Plaintiffs and assessed damages, which the Trial Court, on motion of the Plaintiffs, altered upward. Summers Hardware appeals questioning whether the statute of limitations has run as to Mr. Collins' suit and whether both parties were estopped to press the claim or had waived their right to assert it. Summers Hardware also contends the Trial Court was in error in increasing the jury award without giving them the option of receiving a new trial. We affirm.
Gwen Lay vs. Mark Lay, et al E2000-02914-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: John D. Mcafee
In this case the second wife of Mark Lindsay Lay seeks an increase in child support for their child. Because an attack was made on the constitutionality of the Tennessee Child Support Guidelines, the Attorney General of the State was permitted to intervene. Although neither the former wife nor Mr. Lay appeals, the Attorney General does appeal. We vacate the judgment insofar as it addresses the constitutional issue before the Trial Court, and remand.
Campbell
Court of Appeals
James Nelson s. Victoria Nelson E2000-02873-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Michael A. Davis
James Roger Nelson ("Husband") filed a Complaint for Absolute Divorce ("Complaint") against Victoria Kay Goad Nelson ("Wife"). Wife filed an Answer and a Counter-Complaint for divorce. Wife admitted to Husband she had been and still was involved in an extramarital affair with a co-worker. Before trial, Husband obtained a temporary restraining order against Wife, and Wife obtained an Order of Protection against Husband. Wife testified Husband had subjected her to verbal and physical abuse in front of their minor children. Wife also testified Husband had threatened her with a gun while their children were at home with them. The Trial Court granted both parties a divorce, divided the parties' property, and awarded custody of the children to Husband. The Trial Court based its custody decision upon Wife's extramarital affair and the fact that Husband, at the time of trial, had the more stable home environment. The Trial Court failed, however, to address Wife's allegations that she was abused by Husband. Wife appeals the custody award and portions of the Trial Court's property division. We vacate, in part, and affirm, in part, and remand.
