| Ronald E. Brown v. Balaton Power, Inc.
M2001-02770-COA-R3-CV
This case involves the issue of whether parties contracted for arbitration to be the sole method of dispute resolution with regard to contract disputes. We find the intent of the parties unclear due to an irreconcilable conflict between two sections of the contract dealing with dispute resolution. We, thus, affirm the trial court's ruling that Plaintiff cannot be compelled to arbitrate.
Authoring Judge: Judge William B. Cain
Originating Judge:Russell Heldman |
Williamson County | Court of Appeals | 12/31/03 | |
| Shirley Ann Borchert v. Emerson Electric Company
W2003-00111-WC-R3-CV
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. _ 5-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. In this appeal, the employer questions the trial court's findings as to permanency and extent of vocational disability. As discussed below, the panel has concluded the judgment fails to preponderate against the findings of the trial court. Tenn. Code Ann. _ 5-6-225(e) (22 Supp.) Appeal as of Right; Judgment of the Circuit Court Affirmed JOE C. LOSER, JR., SP. J., in which JANICE M. HOLDER, J., and JOE H. WALKER, III, SP. J., joined. Richard L. Dunlap, Paris, Tennessee, for the appellant, Emerson Electric Company Charles L. Hicks, Camden, Tennessee, for the appellee, Shirley Ann Borchert MEMORANDUM OPINION The employee or claimant, Ms. Borchert, initiated this civil action to recover workers' compensation benefits from her employer, Emerson, for a work related foot injury. Emerson denied liability. After a trial on the merits, the trial court awarded, among other things, permanent partial disability benefits based on 35 percent to the leg. The employer has appealed. 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 record to determine where the preponderance lies. Galloway v. Memphis Drum Serv., 822 S.W.2d 584, 586 (Tenn. 1991). Where the trial judge has seen and heard the witnesses, especially if issues of credibility and weight to be given oral testimony are involved, considerable deference must be accorded those circumstances on review, because it is the trial court which had the opportunity to observe the witnesses' demeanor and to hear the in- court testimony. Long v. Tri-Con Ind., Ltd., 996 S.W.2d 173, 178 (Tenn. 1999). The appellate tribunal, however, is as well situated to gauge the weight, worth and significance of deposition testimony as the trial judge. Walker v. Saturn Corp., 986 S.W.2d 24, 27 (Tenn. 1998). Conclusions of law are subject to de novo review on appeal without any presumption of correctness. Nutt v. Champion Intern. Corp., 98 S.W.2d 365, 367 (Tenn. 1998). The claimant was working on the employer's production line on August 24, 1999, when a piece of sheet metal, approximately one and one-half feet long and eight or nine inches wide, fell from a table top and landed on her right leg at the ankle. The ankle and foot immediately became swollen and bruised. She was taken to the Henry County Medical Emergency Room, where she was treated and referred to Dr. Bo Griffey. Dr. Griffey treated her with antibiotics and pain medication and returned her to light duty work on September 14, 1999. He returned her to full duty on November 2,1999. She continued to have swelling, pain and stiffness in her right ankle. She continued to see other doctors with those complaints. On November 3, 2, more than a year after her injury, she visited Dr. Vince Tusa. She also saw Dr. Segal, who referred her to an orthopedic surgeon, Dr. G. Blake Chandler. Dr. Chandler ordered magnetic resonance imaging, which revealed joint fusion and subcutaneous edema in the medial aspect of the injured ankle. She saw Dr. Joseph Boals, who studied her medical records, examined her and opined that she would retain some minor permanent impairment as a result of the injury. He advised her to wear an ankle brace and permanently restricted her from walking on uneven ground and from excessive stooping, squatting, standing, walking and climbing. She saw Dr. Robert Barnett, who, based on atrophy in her right calf, inability to stand on her right leg for any length of time, limited motion and a chronically swollen right ankle, estimated her permanent medical impairment to be 1 percent to the right lower extremity. She was evaluated by Dr. Amy Dunagan, who found no evidence of muscle atrophy or significant noticeable weakness. The claimant continues to have swelling in her right foot and ankle. She cannot walk or stand for long periods of time without experiencing extreme pain from her right ankle and calf. She takes Alleve to control the pain, has tenderness and limited motion in the injured joint and walks with a limp. Because she is no longer able to perform her assigned duties, she has not worked for the employer since March 14, 21. Her testimony in these respects was corroborated by other lay witnesses. The appellant contends the trial court erred in admitting into evidence the testimony of Dr. Boals because there was a discrepancy between his testimony and the report of Dr. Robb Mitchell, the doctor who performed the magnetic resonance imaging test. Dr. Mitchell's report said the -2-
Authoring Judge: Joe C. Loser, Jr., Sp. J.
Originating Judge:C. Creed Mcginley, Judge |
Benton County | Workers Compensation Panel | 12/31/03 | |
| Meaji Nisley Lockmiller v. Mark Lockmiller
E2002-02586-COA-R3-CV
In this divorce case, the parties contested, among other things, the issues of divorce and the custody of their minor children, Victoria Grace Lockmiller (DOB: August 27, 1994) and James Roman Lockmiller (DOB: November 24, 1998). Expressing its belief that Mark Douglas Lockmiller ("Father") would not tell "a knowing untruth," the trial court granted him a divorce from Meaji Lynn Nisley Lockmiller ("Mother") on the ground of inappropriate marital conduct and designated him as the primary residential parent of the parties' children. Wife appeals, contending that the evidence preponderates against the trial court's award of primary custody to Father. We affirm.
Authoring Judge: Judge Charles D. Susano, Jr.
Originating Judge:John B. Hagler, Jr. |
McMinn County | Court of Appeals | 12/30/03 | |
| Eleonora Kogan. v. Tennessee Board of Dentistry
M2003-00291-COA-R3-CV
In this case we are asked to determine the type of notice required to be given a defendant in a contested case hearing before a state administrative agency. We determine that Tennessee Compilation of Administrative Rules and Regulations 13604-1-.06 applies and requires personal service, return receipt mail, or, in the event of evading service, personal service with a person at the parties' dwelling place. In the case at bar, service of notice of the new trial date was made through regular mail only. This method of service is insufficient. The decision of the Board of Dentistry is vacated, and the case is remanded.
Authoring Judge: Judge William B. Cain
Originating Judge:Irvin H. Kilcrease, Jr. |
Davidson County | Court of Appeals | 12/30/03 | |
| Inez Seals and Terry Hurd v. Life Investors Insurance
M2002-01753-COA-R3-CV
This is a case involving the reformation of a settlement agreement terminating claims on two policies between plaintiffs and the defendant insurance company. The trial court refused to reform the settlement agreement and denied defendants their attorney's fees. For the following reasons, we affirm in part, reverse in part, and remand this case for further proceedings.
Authoring Judge: Presiding Judge Alan E. Highers
Originating Judge:John W. Rollins |
Sequatchie County | Court of Appeals | 12/30/03 | |
| State of Tennessee v. Charles Johnston
E2002-02028-CCA-R3-CD
Charles Johnston appeals from his Carter County Criminal Court conviction of contempt of court. He claims that the evidence does not sufficiently support the conviction, that his due process rights were violated in the conviction proceedings, that the court erroneously admitted an audiotape of prior proceedings in the general sessions court, that he was sentenced too harshly and unfairly denied judicial diversion, and that the lower court abused its discretion in setting his appeal bond. Because we discern no reversible error, we affirm the defendant's conviction and sentence.
Authoring Judge: Judge J. Curwood Witt, Jr.
Originating Judge:Judge Lynn W. Brown |
Carter County | Court of Criminal Appeals | 12/30/03 | |
| In Re: D.D.K., D.M.M., and T.J.M., Jr.
M2003-01016-COA-R3-PT
This appeal involves a petition filed by the Department of Children's Services to terminate the parental rights of Father to his two minor children. The trial court granted the petition and Father appeals the decision. Because we find the petition was improperly granted, we vacate and remand.
Authoring Judge: Presiding Judge Patricia J. Cottrell
Originating Judge:L. Raymond Grimes |
Montgomery County | Court of Appeals | 12/30/03 | |
| State of Tennessee v. Kevin Lamont Hutchison
M2001-03174-CCA-R3-CD
The appellant, Kevin Lamont Hutchison, was convicted by a jury in the Montgomery County Circuit Court of aggravated robbery. The trial court sentenced the appellant to seventeen years imprisonment in the Tennessee Department of Correction. On appeal, the appellant contends that the evidence was not sufficient to support his conviction. Upon review of the record and the parties' briefs, we affirm the judgment of the trial court.
Authoring Judge: Judge Norma McGee Ogle
Originating Judge:Judge Michael R. Jones |
Montgomery County | Court of Criminal Appeals | 12/30/03 | |
| State of Tennessee v. Nesha Newsome
W2002-01306-CCA-R3-CD
The defendant was convicted of especially aggravated kidnapping, aggravated kidnapping, aggravated robbery, and robbery. The defendant contends on appeal that the trial court erred in (1) not properly transferring the case from juvenile court, (2) denying her request for a continuance, (3) admitting a tape recorded statement by the defendant, (4) admitting certain photographs of the victim, (5) refusing to allow expert testimony regarding the defendant's mental condition, (6) refusing to allow evidence of a co-defendant's subsequent crimes, (7) failing to instruct the jury on certain lesser included offenses, and (8) sentencing. We conclude that the trial court erred in applying enhancement factors six and ten. The trial court also erred in not applying the mitigating factor (victim released alive) to the especially aggravated kidnapping conviction. The sentence is reduced for (1) aggravated robbery from ten years to nine years, (2) aggravated kidnapping from ten years to nine years, and (3) especially aggravated kidnapping from twenty-one years to twenty years. We reverse the trial court's determination that the sentences should be served consecutively. We remand to the trial court to amend the judgment for case number 01-00564 to reflect that the defendant was a standard violent offender rather than a repeat violent offender. We affirm the judgments of the trial court in all other respects.
Authoring Judge: Judge John Everett Williams
Originating Judge:Judge Joseph B. Dailey |
Shelby County | Court of Criminal Appeals | 12/30/03 | |
| Susan Taylor v. Square D Company
M2002-01620-COA-R3-CV
Disobeying the direct orders of his supervisor, an electrician began work on a substation without following the proper safety procedures. He was electrocuted and perished almost instantly. The widow of the electrician brought suit against the manufacturer of the substation, alleging that the manufacturer was negligent and had defectively designed an unreasonably dangerous product. The trial court granted summary judgment for the manufacturer. Because there are no material factual disputes, and the negligence of the electrician was clearly greater than that of the manufacturer, we affirm the decision of the trial court.
Authoring Judge: Presiding Judge Patricia J. Cottrell
Originating Judge:Robert E. Corlew, III |
Rutherford County | Court of Appeals | 12/30/03 | |
| State of Tennessee v. Julius L. Jones
W2002-02336-CCA-R3-CD
The defendant was convicted of facilitation of felony murder, a Class A felony, and sentenced to twenty-three years. The defendant contends on appeal that the trial court erred in 1) allowing testimony by Dozier that the defendant told her the victim had been involved in the robbery because the statement was inadmissible hearsay, and 2) refusing to admit the prior written statement of Dozier into evidence under Tennessee Rule of Evidence 613(b). We remand for correction of the judgment form to reflect the correct felony classifications. The judgment of the trial court is affirmed in all other respects.
Authoring Judge: Judge John Everett Williams
Originating Judge:Judge W. Fred Axley |
Shelby County | Court of Criminal Appeals | 12/30/03 | |
| State of Tennessee v. Jerome Comer
M2003-00733-CCA-R3-CD
A Franklin County jury convicted the Defendant of one count of Sale of a Schedule II Controlled Substance, cocaine, and one count of Delivery of a Controlled Substance, also cocaine. The trial court merged the convictions and sentenced the Defendant to eight years in prison. The Defendant appeals, contending: (1) there was insufficient evidence to support his convictions; and (2) that the trial court imposed an excessive sentence. After reviewing the record, we conclude that sufficient evidence was presented to support the Defendant's convictions and the trial court did not err in sentencing the Defendant. Accordingly, we affirm the judgments of the trial court.
Authoring Judge: Judge Robert W. Wedemeyer
Originating Judge:Judge Buddy D. Perry |
Franklin County | Court of Criminal Appeals | 12/30/03 | |
| State of Tennessee v. Andre Anthony
W2002-01377-CCA-R3-CD
Following a jury trial, Defendant, Andre Anthony, was convicted of two counts of forgery over five hundred dollars, one count of forgery over one thousand dollars, one count of criminal attempt to commit first degree murder, and one count of especially aggravated robbery. In his appeal, Defendant argues that (1) the evidence was insufficient to find him guilty beyond a reasonable doubt of attempt to commit first degree murder and especially aggravated robbery; (2) the trial court erred in denying Defendant's motion to suppress evidence obtained through an inventory search of Defendant's vehicle; (3) the trial court erred in failing to instruct the jury that "serious bodily injury" is an element of the offense of especially aggravated robbery; and (4) the trial court erred in ordering Defendant's sentences for attempt to commit first degree murder and especially aggravated robbery to be served consecutively. After a thorough review of the record, we affirm the judgments of the trial court.
Authoring Judge: Judge Thomas T. Woodall
Originating Judge:Judge Chris B. Craft |
Shelby County | Court of Criminal Appeals | 12/30/03 | |
| Lynn Blevins v. Lester Blevins
M2002-02583-COA-R3-CV
This appeal arises from Wife's complaint for divorce. Based on Husband's failure to file an answer, Wife filed a motion for default and notice of hearing. Husband attended the hearing pro se and was afforded the opportunity to continue the hearing to retain legal counsel but declined to do so. After receiving testimony, the trial court awarded Wife a divorce, divided marital property and awarded Wife rehabilitative alimony for 60 months. Husband appeals, asserting that the trial court's division of marital property was not fair and equitable and that Wife did not provide proof sufficient to establish a proper basis for an award of rehabilitative alimony. We reverse and modify in part the division of marital property and indebtedness and reclassify the alimony from rehabilitative to in solido. In all other respects, we affirm the trial court.
Authoring Judge: Judge Frank Clement, Jr.
Originating Judge:Tom E. Gray |
Sumner County | Court of Appeals | 12/30/03 | |
| Irby C. Simpkins v. Peaches G. Blank
M2002-02383-COA-R3-CV
This case involves an appeal from a grant of summary judgment equitably dividing a tax refund of the parties and refusing to reopen the parties' marital dissolution agreement. In addition, appellant contends the trial court erred by awarding attorney's fees to appellee for issues relating to child support litigated below. For the following reasons, this Court affirms the decision of the trial court.
Authoring Judge: Presiding Judge Alan E. Highers
Originating Judge:Walter C. Kurtz |
Davidson County | Court of Appeals | 12/30/03 | |
| State of Tennessee v. Vernica Shabree Ward
M2002-01816-CCA-R3-CD
Defendant, Vernica Shabree Ward, appeals her conviction for second degree murder following a jury trial in the Davidson County Criminal Court. The victim was her daughter Stephanie Ward. Defendant was sentenced to twenty-five years in confinement. In this appeal as of right, Defendant presents eight issues for our review: (1) whether the trial court erred by allowing expert testimony by two witnesses based in part upon the deaths of two other children in addition to the victim in this case; (2) whether the trial court abused its discretion by allowing an expert to testify as to Defendant’s prior attempts to seek medical treatment for Stephanie and that Defendant had other living children; (3) whether the trial court erred by ruling that testimony regarding the statistical improbability of three unexplained infant deaths in the custody of the same caregiver would be admissible by the State as rebuttal proof if Defendant raised the issue of accident or mistake; (4) whether the trial court erred by allowing Dr. Case to testify despite the fact that defense counsel was unable to meet with Dr. Case prior to trial; (5) whether the testimony of the two medical experts at trial was cumulative; (6) whether the trial court properly denied Defendant’s request for a mistrial based on the State’s closing argument; (7) whether the evidence was sufficient to convict Defendant of second degree murder; and (8) whether the trial court properly sentenced Defendant to twenty-five years imprisonment. After a careful review of the record, we reverse the judgment of the trial court and remand for a new trial.
Authoring Judge: Judge Thomas T. Woodall
Originating Judge:Judge Cheryl A. Blackburn |
Davidson County | Court of Criminal Appeals | 12/30/03 | |
| State of Tennessee v. Jesse Tuggle
M2002-02426-CCA-R3-CD
The appellant, Jesse Tuggle, was convicted by a jury in the Williamson County Circuit Court of one count of forgery, one count of theft of property valued under $500, and one count of criminal impersonation. The trial court sentenced the appellant to one and one-half years of imprisonment in the Tennessee Department of Correction for the forgery conviction, eleven months and twenty-nine days imprisonment for the theft conviction, and six months imprisonment for the criminal impersonation conviction. The trial court further ordered the sentences to be served concurrently. On appeal, the appellant contests the sufficiency of the evidence supporting his forgery conviction and argues that the trial court erred in denying alternative sentencing. Upon review of the record and the parties' briefs, we affirm the judgments of the trial court.
Authoring Judge: Judge Norma McGee Ogle
Originating Judge:Judge Timothy L. Easter |
Williamson County | Court of Criminal Appeals | 12/30/03 | |
| Donald Britt v. Roxanne Howell
M2002-03070-COA-R3-CV
The parties are adjacent commercial landowners of two story buildings with the second floors of their buildings being serviced by a common stairway between the two properties. The dispute involves use of the stairway and storage closets under and over the stairwell. The trial court held that the stairway was a common stairway, owned in equal undivided interests by the parties as was the upper floor storage area. The trial court further held that the lower floor storage area belonged exclusively to Appellees. We affirm the judgment of the trial court.
Authoring Judge: Judge William B. Cain
Originating Judge:Robert L. Jones |
Maury County | Court of Appeals | 12/30/03 | |
| State of Tennessee v. Jermaine Reshawn Scott, Anthony Ray Tharpe, and Felicia Ann Taylor
W2002-01812-CCA-R3-CD
Each of the defendants in this case was convicted of drug charges following the search of their home. They contend that the search warrant was invalid because of material misrepresentations and lack of probable cause. They also contend the trial court erred in sentencing each of them. After careful review of the record, we conclude the trial court did not err in failing to suppress the evidence obtained as a result of the search warrant, and we affirm each defendant’s conviction. After de novo review of the trial court’s sentencing determinations, we modify the sentences of defendants Scott and Tharpe. The sentence of Felicia Ann Taylor is affirmed. Accordingly, the case is remanded for entry of corrected judgments of conviction consistent with this opinion.
Authoring Judge: Judge John Everett Williams
Originating Judge:Judge Julian P. Guinn |
Henry County | Court of Criminal Appeals | 12/30/03 | |
| State of Tennessee v. Treasa Renee Shorter
M2002-02387-CCA-R3-CD
The defendant, Treasa Renee Shorter, pled guilty to possession of .5 grams or more of cocaine with intent to sell. The trial court imposed a sentence of nine years and nine months to be served in the Department of Correction. In this appeal, the defendant contends: (1) her sentence is excessive; and (2) the trial court erred in denying alternative sentencing. We affirm the judgment of the trial court.
Authoring Judge: Judge Joe G. Riley
Originating Judge:Judge W. Charles Lee |
Marshall County | Court of Criminal Appeals | 12/30/03 | |
| State of Tennessee v. Vernica Shabree Ward - Concurring
M2002-01816-CCA-R3-CD
I agree with the majority opinion that the so-called “rule of three” evidence should have been excluded in this case, based upon the trial court’s initial ruling that there was insufficient foundation laid to allow its admissibility. I write separately to express that I limit my decision to the instant case. After careful review, I concluded that the admissibility of this evidence was a very close decision and deferred, as I must, to the trial court’s decision. However, with additional testimony concerning the McDaniel factors, a proper foundation might be laid for admitting expert testimony concerning the “rule of three."
Authoring Judge: Judge John Everett Williams
Originating Judge:Judge Cheryl A. Blackburn |
Davidson County | Court of Criminal Appeals | 12/30/03 | |
| Freddie Vaught v. State of Tennessee
M2003-00955-CCA-R3-PC
The petitioner appeals the denial of post-conviction relief. He argues his guilty plea to second degree murder was involuntary due to ineffective assistance of trial counsel. We affirm the judgment of the post-conviction court.
Authoring Judge: Judge Joe G. Riley
Originating Judge:Judge James K. Clayton, Jr. |
Rutherford County | Court of Criminal Appeals | 12/30/03 | |
| State of Tennessee v. Lori Ann Duncan
E2003-00423-CCA-R3-CD
Lori Ann Duncan appeals the Sullivan County Criminal Court's revocation of her probationary sentence. Duncan claims that the lower court abused its discretion in ordering her to serve her sentence in incarceration in the Department of Correction. However, we are unpersuaded and affirm the lower court's judgment.
Authoring Judge: Judge J. Curwood Witt, Jr.
Originating Judge:Judge R. Jerry Beck |
Sullivan County | Court of Criminal Appeals | 12/30/03 | |
| State of Tennessee v. Lavondas Cordell Nelson
M2003-01525-CCA-R3-CO
The Petitioner, Lavondas Cordell Nelson, pled guilty to one count of reckless endangerment with a weapon and one count of possession of a handgun by a felon in the Rutherford County Circuit Court, and the trial court imposed suspended two year sentences for each count, to be served consecutively, plus four years of probation at the expiration of those terms. The Petitioner filed a pro se petition for writ of habeas corpus and a motion requesting that the trial court appoint an attorney to represent him during the habeas corpus proceeding. The trial court denied his motion and dismissed his petition for writ of habeas corpus. On appeal, the Petitioner contends that: (1) the trial court erred in dismissing his petition for writ of habeas corpus; and (2) the trial court erred by denying his motion for appointment of counsel. Finding no reversible error, we affirm the trial court's judgment.
Authoring Judge: Judge Robert W. Wedemeyer
Originating Judge:Judge Don R. Ash |
Rutherford County | Court of Criminal Appeals | 12/30/03 | |
| State of Tennessee v. Travis Anderson
W2003-00674-CCA-R3-CD
The Defendant, Travis Anderson, pled guilty to two counts of aggravated burglary, with an agreed sentence of three years on each count to be served concurrently. Pursuant to the plea agreement, the trial court was to determine whether the Defendant merited for alternative sentencing. Following a sentencing hearing, the trial court denied the Defendant’s application for judicial diversion, suspended his sentence for three years, and placed the Defendant on probation for three years. On appeal, the Defendant contends that the trial court erred in refusing to grant his application for judicial diversion. Finding no error, we affirm the trial court’s judgments.
Authoring Judge: Judge Robert W. Wedemeyer
Originating Judge:Judge Bernie Weinman |
Shelby County | Court of Criminal Appeals | 12/30/03 |
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